Montevallo Mining Co. v. Little

• Decision Date: 15 June 1922
• Docket Number: 7 Div. 249.
• Citation: 208 Ala. 131,93 So. 873
• Parties: MONTEVALLO MINING CO. v. LITTLE.
• Court: Alabama Supreme Court

93 So. 873

208 Ala. 131

MONTEVALLO MINING CO. v. LITTLE.

7 Div. 249.

Supreme Court of Alabama

June 15, 1922

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, Shelby County; A. B. Foster, Judge.

Action for damages by H. H. Little against the Montevallo Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Nesbit & Sadler, of Birmingham, for appellant.

Riddle & Ellis, of Columbiana, for appellee.

McCLELLAN J.

The plaintiff's (appellee's) injury resulted from being struck on the top of his head by a lump of coal, in consequence of which, he contends, his health has been seriously impaired, if not destroyed. The plaintiff's theory was that the coal was cast off by the operation of defendant's (appellant's) "coal washer," of which an elevator" many feet above the ground level was a part. The evidence for defendant tended to disprove plaintiff's theory, both in respect of the plaintiff's claim that this lump of coal was cast off the "washer," as well as in respect of the plaintiff's contention that defendant's "washer plant" was deficient or defective because of the absence of proper barrier to prevent coal passing to or upon the vibrating "shaker" from being cast off and falling to the railway track or tracks of the Southern Railway Company, over which defendant's coal product was removed.

At the time plaintiff was injured, he was a conductor in the employ and then in the service, of the Southern Railway Company operating a freight train. The train was there to serve, and was serving, defendant's industry. The tracks provided were upon the premises of the defendant. The Southern Railway Company's trainmen, including the plaintiff, were invitees when engaged in this service upon defendant's premises; and the obligation, assumed by the defendant toward them was that such premises should be in a reasonably safe condition for the invitee's presence thereon and his use thereof within the contemplation of the invitation. 10 Mich Dig. Ala. Rep. pp. 571, 572, collating the decisions stating and illustrating the doctrine.

It is the duty of the proprietor to warn the invitee of dangers or dangerous defects upon the premises at the place where the invitee is expected to go, of which the proprietor knows or should be informed, and of which the invitee is not aware; this to the end that the invitee may exercise reasonable care to avoid the danger. O'Brien v. Tatum, 84 Ala. 186, 188, 4 So. 158; 20 R. C. L. pp. 56, 57; Bennett v. L. & N., 102 U.S. 577, 26 L.Ed. 235.

Count 5 of the amended complaint-the only count the averments of which were submitted to the jury-disclosed that plaintiff's relation to defendant's premises was that of an invitee, thereby excluding the idea that the plaintiff was a trespasser. There was no error in overruling demurrer to this count.

Pretermitting other possible considerations that might justify the conclusion that the defendant was not entitled to a general affirmative instruction against a recovery upon the theory that plaintiff was himself so informed of the danger from coal being thrown or falling from the "washer," and hence was guilty of contributory negligence barring his right to recover, it is manifest, we think, that that issue was, under the whole evidence, due to be submitted to the jury's determination. Notwithstanding plaintiff testified that he knew that coal was cast off the "washer" about some of the four tracks near to the "washer," and that he advised the operator of the "washer" of the fact, and that the place was thereby rendered dangerous, it cannot be affirmed as a matter of law that the particular place whereat he was injured was within the area of the dangerous character of which he was aware and had complained. Knowledge of the elements of a dangerous situation is not necessarily knowledge of the danger itself.

The defendant was not due the general affirmative instruction requested. There was evidence to the effect that the coal striking plaintiff came from, or was cast off by, the "washer's" operation. It was for the jury to determine the credibility to be accorded that testimony.

Since the evidence was without dispute that the plaintiff was struck on the head by a piece of coal, the court did not err to defendant's prejudice in instructing the jury, through the instruction set out in assignment 2, upon assumption to that effect.

The court declined defendant's request of an instruction that concluded against plaintiff's right to recover if the jury found from the evidence that "plaintiff's injury was caused by an accident." If this request, had defined "accident" as a "mere accident," thereby excluding the intervention of negligence in the premises, defendant would have been entitled to have the jury so advised. Williams v. Anniston Elec. Co., 164 Ala. 84, 93, 51 So. 385, treating charge E; Norwood Trans. Co. v. Crossett (Ala. Sup.) 92 So. 461, citing additional authorities for the court's view. This request for instruction was refused without error.

During the trial it developed that Drs. Harris...