Montevallo Mining Co. v. Underwood

Decision Date06 June 1918
Docket Number7 Div. 919
Citation202 Ala. 59,79 So. 453
PartiesMONTEVALLO MINING CO. v. UNDERWOOD.
CourtAlabama Supreme Court

Rehearing Denied June 29, 1918

Appeal from Circuit Court, Shelby County; Lum Duke, Judge.

Action by Richard Underwood, pro ami, against the Montevallo Mining Company, a corporation, for personal injury. Judgment for plaintiff, and defendant appeals. Affirmed.

V.J Nesbit, of Birmingham, for appellant.

Longshore Koenig & Longshore and Riddle & Ellis, all of Columbiana, for appellee.

McCLELLAN J.

The plaintiff (appellee) was run over and greatly injured by a motorcar driven by a gasoline engine on a tram track which the defendant (appellant) used to move the output of its mine from the "stock pile" to the point of loading on the cars of a carrier. The amended complaint contained counts A to F, inclusive; and the formulation of the issues was in short by consent with leave to offer evidence of any matter of defense, and thereupon of avoidance, as if fully pleaded. Counts A, D, and E aver the existence of the relation of master and servant at the time plaintiff was injured; while counts B, C, and F proceed without averment of the existence of that relationship. Whether plaintiff was at the time of his injury then engaged in the service of the defendant was the subject of dispute in the evidence, thus eliminating, so far as the general affirmative instruction as to particular counts charging simple negligence was concerned, considerations that have led this court to hold that, in simple negligence cases, one may not sue as a stranger and recover upon proof which affirmed the existence of the relation of master and servant. So. Ry. Co. v. Cooper, 172 Ala. 505, 512, 55 So. 211; Choate v. R.R. Co., 170 Ala. 590, 54 So. 507; Tenn. Coal Co. v. Davis, 194 Ala. 149, 69 So. 544. With respect to the counts averring the existence of the relationship of master and servant (A, D, and E), these counts ascribe plaintiff's injury to these causes: Count A, negligence of an employé of the common master who had charge or control of a motorcar on a railway, under subdivision 5 of Code, § 3910; count D, negligent order by a named superintendent, under subdivision 2 of Code, § 3910; and count E, defect in the condition of the ways, etc., under subdivision 1 of Code, § 3910. With respect to the counts omitting any averment of such relationship (B, C, and F), those lettered B and C proceed on the theory that plaintiff's injury was caused by wanton or willful misconduct on the part of an employé of the defendant who was operating the motor, the former (B) averring that the operative was aware of plaintiff's peril, and the latter (C) charging, simply, that the motorcar was wantonly, willfully, or intentionally caused or allowed to run over or against the plaintiff, and count F, which expressed the theory that the plaintiff's injury proximately resulted from simple negligence after the discovery of plaintiff's peril.

There is no insistence upon any assignment of error based upon rulings on the sufficiency of the counts. All of the assignments insisted upon relate to the instruction of the jury. The report of the appeal will reproduce the subjects of assignments of error 4, 10, 11, 13, 14, and 15. Those numbered 5, 7, 8 and 9 invoke review of the action of the court in refusing the general affirmative charges as to counts B, D, E, and F.

The court was fully justified in refusing to give, at the defendant's instance, the special requests quoted in assignments of error 10, 11, and 14. These requests would, if given, have invaded the jury's province, and, as well, would have unjustifiably restricted the issues to be determined by the jury. They are also subject to other criticisms warranting their refusal. There was evidence for the plaintiff tending to show that the operative of the motor was aware of the plaintiff's peril, but, notwithstanding this knowledge, either wantonly or willfully caused or suffered the motorcar to run upon him, or, as the immediate consequence of simple negligence after discovery of his peril, permitted the motorcar to run against him. Renfroe v. Collins, 78 So. 395, 398, 399, treating charge A. It is hardly necessary to add that negligence on the part of the injured person will not defeat a recovery as for a wanton or willful wrong, or that initial negligence on the part of the injured person will not bar his right to recover for a wrong negligently caused or permitted after discovery of his peril. L. & N.R.R. Co. v. Young, 153 Ala. 232, 45 So. 238, 16 L.R.A.(N.S.) 301; Anniston Elec. Co. v. Rosen, 159 Ala. 195, 48 So. 798, 133 Am.St.Rep. 32.

The subject of assignment numbered 13 proceeded upon the erroneous idea that section 98 of the Mining Law enacted in 1911 (Gen.Acts 1911, p. 534) had application to tramways or tram tracks that were employed outside of mines, disconnected with such ways in mines. Empire Coal Co. v. Bowen, 195 Ala. 348, 70 So. 283. For this reason, among others, the court properly refused this instruction.

The refusal to defendant of the special request numbered 29 (assignment 15), whereby advantage appears to have been sought of the rule where the person injured advisedly takes a dangerous way when a safe way is open to him, may be justified on this ground, apart from others: That the requested...

To continue reading

Request your trial
7 cases
  • Jefferson v. Republic Iron & Steel Co.
    • United States
    • Supreme Court of Alabama
    • May 11, 1922
    ...... familiar with it, and knew it was dangerous, and I had. handled it as a miner in my mining work. The dynamite is. always marked dangerous, and the percentage is marked on it;. whatever it ...14, 75 So. 326;. B. R., L. & P. Co. v. Canfield, 177 Ala. 422, 59 So. 217; Montevallo Min. Co. v. Underwood, 202 Ala. 59,. 79 So. 453. . . It may. be that detailed ......
  • Crescent Motor Co. v. Stone
    • United States
    • Supreme Court of Alabama
    • May 11, 1922
    ......449, 73 So. 642, in response. on rehearing-and later illustrated in Montevallo Mining. Co. v. Underwood, 202 Ala. 59, 61, 79 So. 453, justified. the court's action in refusing ......
  • Louisville & N.R. Co. v. Cross
    • United States
    • Supreme Court of Alabama
    • February 10, 1921
    ...... evidence before the trial court, a full record here required. their presence therein. Montevallo Mining Co. v. Underwood, 202 Ala. 59, 62, 79 So. 453. A. "flag" was shown on a photograph ......
  • Starkey v. Bryant
    • United States
    • Supreme Court of Alabama
    • June 30, 1952
    ...They being a part of the evidence before the trial court, a full record here requires their presence therein. Montevallo Mining Co. v. Underwood, 202 Ala. 59, 79 So. 453; Louisville & Nashville Railroad Co. v. Cross, 205 Ala. 626, 88 So. 908; Gossett v. Pratt, 250 Ala. 300, 34 So.2d 145. We......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT