New Connellsville Coal & Coke Co. v. Kilgore

• Decision Date: 10 June 1909
• Citation: 162 Ala. 642,50 So. 205
• Parties: NEW CONNELLSVILLE COAL & COKE CO. v. KILGORE.
• Court: Alabama Supreme Court

50 So. 205

162 Ala. 642

NEW CONNELLSVILLE COAL & COKE CO. v. KILGORE.

Supreme Court of Alabama

June 10, 1909

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

Action by Robert Kilgore against the New Connellsville Coal & Coke Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The cause was tried on the following counts:

(3) "Plaintiff claims of the defendant the sum of $10,000 damages, for that, to wit, heretofore, on March 6, 1908, and prior thereto, the defendant was a body corporate, and engaged in the business of mining coal at or near Connellsville, in Jefferson county, Ala.; and plaintiff avers that on said date he was in the employment of defendant in said coal mine as a miner and laborer in and about the operation of said mine, and while so employed he was engaged in cutting a brace through or opening between the air shaft and slope; and plaintiff avers that while in the discharge of his duties, and in the line and scope of his employment as such miner and laborer, it was necessary for him to be near the said air shaft to give signals to the engineer in charge of the hoist in said shaft in and about the hoisting of timbers to the place where plaintiff was at work. Plaintiff further avers that in said air shaft there was a skidway built of timbers on which a bucket was operated for the purpose of hoisting coal and timber and other things in and out of the mine, there being a rope attached to said bucket from a hoisting engine on top of the ground, and that signals were given to the engineer in charge of said engine by means of a wire connected with said engine room and extending down into the mine. Plaintiff avers that while near said shaft having timbers hoisted to his work, said bucket jumped off or was jerked off, said skidway, and caught plaintiff between the timbers of said mine, breaking, mashing, and bruising his right shoulder, cutting, mashing, and bruising his face, and otherwise bruising, injuring, and lacerating his body severely, injuring him internally, which resulted in permanent injuries to his right shoulder and arm; that he has paid out or obligated himself to pay out large sums of money for medicine, medical attention, nursing, and proper diet that he has lost his earning power; that he was confined to his bed for a long space of time; that he has sustained great mental agony and physical suffering, and was made sick, sore and lame; that he was permanently injured and disabled. And plaintiff avers that his said injuries were proximately caused by reason of a defect in the condition of the ways works, machinery, or plant connected with or used in the business of the defendant, and that said defect consisted in this: That the timbers out of which the skidway was built were not evenly joined together, and the said skidway was rough and uneven, thereby proximately causing said bucket to jump out of said skidway and injuring the plaintiff as aforesaid. And plaintiff avers that said defect arose from, or had not been discovered or remedied owing to, the negligence of defendant, or of some person intrusted by the defendant with the duty of seeing that the ways, works, machinery, or plant were in proper condition."

(4) Same as 3, except that the defect is alleged to have consisted in the fact that the bucket used in lowering and hoisting timbers was broken, and the edges thereof rough and uneven, thereby proximately causing said bucket to catch at the joints of said skidway and jump out, or be jerked out, of said skidway.

(5) Same as 3, except that the defects are alleged to consist in this: "That the signal wire from the bottom of the mine to the engine room was rough, crooked, and knotted, thereby preventing signals being instantly transmitted to the engineer, and thereby proximately causing said bucket to jump out of said skidway when it caught in said skidway, and injuring plaintiff," etc.

(6) Same as 3, except that the defect is alleged to have consisted in this: "That an iron bank around said bucket, and upon which said bucket slid up and down, was broken, thereby proximately causing said bucket to catch in said skidway, and jump out, or be jerked out, of said skidway."

The following pleas were filed to the complaint originally:

(5) "As a further answer to the first count, defendant says that the plaintiff's alleged injuries were the proximate result of his own negligence, which consisted in this: That he gave a signal to the hoisting engineer to pull the bucket out of the shaft at full speed, well knowing and obvious of the fact that said bucket was apt to jump from said skidway and injure him at the place alleged."

(7) "That plaintiff's said injuries were the proximate result of the negligence of his fellow servant, in that said timber was insecurely and negligently loaded on said bucket, in that it was not tied or fastened, and by reason thereof said timber became loose, causing the injury as aforesaid by falling against or upon plaintiff, as a proximate result of the said negligence of plaintiff's fellow servant, viz., Coe, in loading said timber."

(9) "That plaintiff was guilty of negligence which proximately contributed to his alleged injuries in this: That he had control and direction and aided in the construction of said skidway, signal apparatus, and place wherein he was injured, and that said unsafe place or condition thereof were known and obvious to the plaintiff, and that plaintiff negligently remained in the service of the defendant after such knowledge."

All these pleas were filed to the first and and second count.

(C) "That plaintiff voluntarily went to the place where he is alleged to have been injured near or at said skidway, when he knew that the timber on the bucket was approaching and that it would probably strike plaintiff. Nevertheless he negligently remained in such dangerous place, and he thereby assumed the risk of being injured when the said bucket containing the timber reached the place or point where he was standing."

(D) "Plaintiff ordered one of his fellow servants, viz., T. E. Coe, to go to the bottom of said mine and there load timbers or timber on said bucket to be hoisted to the place where plaintiff was at work; that such order was given with the knowledge that it was dangerous and unsafe to so hoist such timbers from the bottom of the shaft; and that the said fellow servant, in conforming to the said order of the plaintiff, loading said timber on said bucket of said skidway, and in so loading said timber, he negligently failed to tie or fasten the same in said bucket, upon and in accord with the signal of the plaintiff, negligently given said engineer in charge of the engine used to hoist said bucket, to hoist said bucket; and the said engineer hoisted said bucket on said skidway at a great and dangerous rate of speed, and the said timber, being improperly and negligently loaded on said bucket as aforesaid, became loose and swung around, causing said bucket to jump from said skidway, injuring the plaintiff as aforesaid."

The last two pleas were filed to counts 1, 2, 3, 4, 5, and 6.

The following demurrers were filed to the pleas:

(5) "Because said plea fails to show wherein the act of the plaintiff proximately contributed to the injury complained of. Because said plea fails to set out facts which would make it obviously dangerous to give signal to the hoisting engineer to pull the bucket out of the shaft at full speed. Because said plea fails to show wherein the pulling the bucket out of the shaft at full speed was obviously dangerous."

(7) "Because said plea fails to allege in what way the timber, being loose, proximately caused the injuries complained of. Because the averments are a mere conclusion of the pleader, unsupported by the facts alleged. Because said plea fails to give the name of the fellow servant who caused the injury complained of. Because it does not appear from said plea that a fellow servant of the plaintiff did any act which in any manner contributed to or caused the injury complained of."

(9) "Because said plea fails to allege that the plaintiff continued in the service or employment of defendant after he knew of the defects complained of, and appreciated the danger thereof, for an unreasonable time. The averments in said plea to the effect that the plaintiff was guilty of contributory negligence are mere conclusions of the pleader."

(10) "Said plea fails to aver that defendant provided a reasonably safe place in which the plaintiff could do his work. Because the delegation of the maintenance of the place where the plaintiff worked to a competent person is no excuse or defense for not furnishing plaintiff with a reasonably safe place in which to work."

(C) "Because it does not allege that there was any other place at which plaintiff could have done his work under his employment. Because it does not allege that there was a safer place for plaintiff to do his work. It is not shown that the risk assumed by the plaintiff was one of the risks reasonably incident to his employment. Because it is not shown that plaintiff knew of and appreciated the danger to which he was exposed."

(D) "Because it does not appear that the injury resulted proximately from any fault or negligence on the part of the plaintiff."

Additional pleas to the third count are as follows:

(2) "Plaintiff was guilty of negligence which proximately contributed to his alleged injury in this: That he had a full knowledge of said defect, and remained in the employ of defendant for an unreasonable length of time with such knowledge."

(4) "Defendant says the plaintiff ought not to recover in this action, because his injuries were the proximate results of his failure to obey a rule or instruction of the defendant in...