New Connellsville Coal & Coke Co. v. Kilgore

• Court: Alabama Court of Appeals
• Writing for the Court: [4 Ala.App. 338] DE GRAFFENRIED, J.
• Citation: 58 So. 966,4 Ala.App. 334
• Decision Date: 09 May 1912
• Parties: NEW CONNELLSVILLE COAL & COKE CO. v. KILGORE.

58 So. 966

4 Ala.App. 334

NEW CONNELLSVILLE COAL & COKE CO.
v.
KILGORE.

Court of Appeals of Alabama

May 9, 1912

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Robert Kilgore against the New Connellsville Coal & Coke Company, for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

By reference to a former report of this case, in 162 Ala. 642, 50 So. 205, counts 3, 4, 5, and 6 will be found substantially stated. Count 1 is as follows: "Plaintiff claims of defendant the sum of $10,000 as damages." Same as count 3, shown in former report, down to and including the words, "he was permanently injured and disabled," and adds: "And plaintiff avers that his said injuries were proximately caused by the negligence of defendant in failing to exercise due care in providing him with a reasonably safe place in which to do his work under his said employment, as it was his duty to do." Count 2 is the same as count 1, except that it alleges the negligent failure to exercise due care in providing him with reasonably safe tools and appliances. Count 1 was amended by adding the following at the end thereof: "In this: That plaintiff had to do his work under his employment near the shaft or slope of the defendant, in which there was a skidway on which was operated a bucket or other receptacle for coal and timbers, and defendant negligently failed to provide appliances which would prevent said bucket from jumping out of said skidway, and because thereof the said bucket caught plaintiff against the timber in said mine, proximately causing his injuries as aforesaid." Count 2 was afterwards amended by adding at the end thereof the following: "In that defendant failed to provide reasonably safe appliances for holding said bucket in said skidway, when said bucket was being lowered into and hoisted out of said mine." The demurrers are those set out in the former report. Plea 3 was filed to the third count of the complaint, as was plea 8.

James L. Davidson, of Birmingham, and Ben G. Perry, of Bessemer, for appellant.

[4 Ala.App. 337] Estes, Jones & Welch and T. T. Huey, all of Bessemer, for appellee.

[4 Ala.App. 338] DE GRAFFENRIED, J.

This suit was brought by the appellee to recover damages which the appellee claims he sustained while working as a servant for the appellant in a coal mine. It appears from the bill of exceptions that there was a groove, or "skidway," running from the top to the bottom of the airway in the mine. A bucket was raised and lowered to and from the bottom to the top of this "skidway" by means of a rope, which was attached to a drum in the engine room at the mouth of the mine, and which was operated by the engine. Running along the side of the skidway was a wire, which was attached to a bell in the engine room. This wire was used by the servants in the mine for the purpose of signaling the engineer as to the movements of the bucket, and for the purpose of letting him know when and where they desired the bucket to stop and what they desired him to do with the bucket. This wire was placed by the skidway for the above purpose. There was also a hollow tube or pipe through which communication might be had with the engineer; but this pipe appears to have been some distance from the skidway at the point where the injury occurred.

1. There were six counts to the complaint. The first count of the complaint counted upon the common-law liability of the appellant for a negligent failure to furnish the appellee with a reasonably safe place in which to work. The gravamen of this count was that appellee suffered the injuries of which he complained because the appellant negligently failed "to exercise due care in providing for appellee a reasonably safe place in which to do his work under his said employment, as it was his duty to do, in this, appellant negligently failed to provide [4 Ala.App. 339] appliances which would prevent said bucket from jumping out of said skidway." It is contended by the appellant that the count charges the appellant with too high a degree of care. This question does not seem to have been raised by any demurrer which the court passed upon. The record in this case is in a state of some confusion because of the unnecessary number of pleas and demurrers which were filed by the parties in the cause, and we are not able to say from the judgment entry that the demurrers which the appellant specially filed to counts 1 and 2 of the complaint were ever passed upon by the trial court. The judgment entry recites that the appellant "by separate piece of paper of this date files additional demurrers to the complaint on leave of the court first had and obtained," and that the court overruled the demurrers. We find in the record demurrers which were filed on the date of the above judgment entry, and which are on a separate piece of paper, and which are headed: "Comes the defendant and demurs to the complaint on file herein, and to each and every count thereof, as amended separately and severally on the following grounds." This demurrer contains 26 grounds, which, the demurrer says, is filed separately and severally, to each count of the complaint, and four additional grounds which, according to the demurrer, is filed to the fifth count. We presume that this is the demurrer which is referred to in the judgment entry, as it meets the language of the judgment entry.

In addition to the above demurrers, we also find in the record another set of demurrers, on another separate piece of paper, which were not filed to the entire complaint, or to all of its counts separately and successively, but only to the first and second counts of the complaint. As these last demurrers do not come within [4 Ala.App. 340] the language of the court in the above-quoted judgment entry, we presume that they were not acted upon by the court, but that they were abandoned by appellant.

The first count of the complaint was certainly not subject to the grounds of demurrer which were interposed to it and which were passed upon by the court as shown by the judgment entry. Sloss-Sheffield Steel & Iron Co. v. Triplett (present term) 58 So. 109; Sloss-Sheffield Steel & Iron Co. v. Triplett (Sup. Ct., present term) 58 So. 108; Smith v. Watkins & Donelson, 55 So. 611; New Connellsville Coal & Coke Co. v. Kilgore, 162 Ala. 642, 50 So. 205.

2. For the reasons above assigned, and upon the authorities above cited, we are of [58 So. 969] opinion that the second count of the complaint was not subject to appellant's demurrer.

3. This case was before the Supreme Court on a former appeal, and for the reasons set out in the opinion rendered upon the former appeal we are of opinion that the third, fourth, fifth, and sixth counts of the complaint were...