Merriweather v. Sayre Mining & Mfg. Co.
Decision Date | 20 May 1909 |
Citation | 49 So. 916,161 Ala. 441 |
Parties | MERRIWEATHER v. SAYRE MINING & MFG. CO. |
Court | Alabama Supreme Court |
Appeal from City Court of Birmingham; E. N. Hamill, Special Judge.
Action by Wm. Merriweather, as administrator, against the Sayre Mining & Manufacturing Company for the negligent death of his intestate. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
The complaint as amended is as follows:
Count 13:
Count 14: Same as 13, down to and including the words "or service of the defendant," and adds: "The plaintiff alleges that the operation of said mine by the defendant, and particularly of said heading, was naturally and inherently a dangerous business, by reason of the fact that the rock in said heading, if not blasted, was liable to fall and thereby injure the plaintiff's intestate and other persons working therein, and the only safe way to prevent such injury was to blast said rock so that it would not fall; and it became the duty of defendant's agent in said mine, whose name is unknown to plaintiff, to adopt and enforce reasonable rules in regard to the blasting of rocks in said heading, so as to prevent injury to persons working therein from falling rock, and by reason of the concurrent negligence of said agent, who was in defendant's service and employ and intrusted by it with superintendence, while in the exercise of the same, in not adopting and enforcing such rule, and of the negligence or bad business of a fellow servant of the intestate, the rock in said heading, was not properly blasted, and fell and crushed to death his intestate."
Count 15: Same as 14, down to and including the words "so that it would not fall," and adds the following: "And it became the duty of defendant's agent, who knew that plaintiff's intestate was under age and inexperienced as a miner, and incapable of understanding and of fully appreciating the danger under which he was laboring, and of which he was ignorant, or if he did not actually know of these facts, he had ample notice thereof, from his intestate's apparent age and appearance, not to set his intestate at work in said heading without protecting him from these dangers and instructing and informing him how to blast the rock so that it would not fall and thereby injure him notwithstanding said agent, whose name is unknown to plaintiff, and who was in the service and employ of defendant, and intrusted by it with super-intendence, whilst in the exercise of same, violated this duty and negligently set his intestate at work in said heading, and as a consequence of said negligence his intestate received injuries causing death."
Plea 2 as amended, is as follows: "For further plea, in answer to each count in the complaint, separately and severally defendant says that plaintiff's intestate, the said John Merriweather, was himself guilty of negligence which proximately contributed to his said alleged injury, and that his said negligence consisted in this: Plaintiff's intestate negligently caused or allowed himself to be under or in dangerous proximity to a part of the top or roof of said mine which was in danger of falling, of which fact intestate had knowledge, or which fact it was his duty to ascertain, and which he negligently failed to ascertain, or which fact was obvious to intestate, whereby and as a proximate consequence thereof the same fell upon or against him and so injured him that he died."
Plea 4 "For further plea, in answer to each count of the complaint, separately and severally, defendant says that plaintiff's intestate, the said John Merriweather, was himself guilty of negligence which proximately contributed to his said alleged injuries, and that his said negligence consisted in this: The said John Merriweather, with knowledge or notice that a part of the top or roof of the said mine was loose, or in danger of falling, and with knowledge or notice that, should the same fall when he was under or near the same, injury would result to him, nevertheless he went under or near the same, whereby, and as a proximate consequence of which, said mine fell upon him, and so injured him that he died."
Plea 6: "And for further plea, in answer to said eleventh and twelfth counts of the complaint, separately and severally, defendant says that plaintiff's intestate knew of the defect or negligence which caused his injury or death, and failed in a reasonable time to give information thereof to defendant, or to some person superior to said intestate engaged in the service or employment of defendant; and defendant further avers that intestate was not aware that the defendant, or such superior in its service, knew of such defect or negligence."
Plea 7: "And for further plea, in answer to each count of the complaint, separately and severally, the defendant says that plaintiff's intestate was aware that the roof or top of said mine which fell was in danger of falling, and with a knowledge and appreciation of the danger arising therefrom, and thereafter said intestate voluntarily remained in the service or employment of defendant for an unreasonable length of time, and voluntarily went under said roof of said mine."
Plea 8: "And for further plea and answer to each count of the complaint, separately and severally, defendant says that plaintiff's intestate was himself guilty of negligence which proximately contributed to his said alleged injuries and death, and that his said negligence consisted in this: The said plaintiff's intestate, with knowledge that a part of the top or roof of said mine was loose and was in danger of falling, and with knowledge that, should the same fall when he was under or dangerously near the same, injury would result to him, nevertheless said intestate negligently went under or dangerously near the same, whereby and as a proximate consequence of which said roof or top of said mine fell upon him and so injured him that he died."
The replication to the seventh plea was as follows: "That notwithstanding the fact that plaintiff's intestate was aware of the existence of the defect in the roof of said heading, as alleged in said plea, and that he remained in defendant's service or employment, and continued to work in the presence of said defect, his intestate gave notice of the existence of this defect to some superior of his in the defendant's service whose name is unknown to plaintiff, and that said superior who had authority in that behalf promised him that he would remedy that defect by having the rock blasted down when the air course towards which the said heading was being driven was reached, which time was a reasonable time for remedying said defect, and assured him that in the meantime the said defect or overhanging rock was safe. Plaintiff alleges that this undertaking by said superior to remedy the said defect when the air course was reached was an assumption by the defendant of the risk of injury to his intestate within that promised time, and that his intestate was crushed to death on account of said defect, from which injury did not appear to be imminent and impending, by having said overhanging rock fall upon him while engaged in his duties before said heading had been driven through to said air course, for which defendant is liable.
The replications to pleas 2, 4, and 8, are similar in all respects to the one above set out.
The following charges were refused to the...
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