Pioneer Min. & Mfg. Co. v. Talley

• Decision Date: 14 February 1907
• Citation: 152 Ala. 162,43 So. 800
• Parties: PIONEER MINING & MFG. CO. v. TALLEY.
• Court: Alabama Supreme Court

43 So. 800

152 Ala. 162

PIONEER MINING & MFG. CO. v. TALLEY.

Supreme Court of Alabama

February 14, 1907

Rehearing Denied May 6, 1907.

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by Melvin M. Talley against the Pioneer Mining &amp Manufacturing Company. Judgment for plaintiff, and defendant appeals. Reversed.

Campbell & Walker, for appellant.

Bowman Harsh & Beddow, for appellee.

HARALSON J.

The defendant's contention, and the one on which he relies to show that the affirmative charge should have been given for the defendant is, that the plaintiff left his place of business at what was called the eighth east cross entry in the mine, and went of his own accord to what was called the dip entry adjoining which McAvoy and Baker were driving, and while there, received the injuries of which he complains, by the falling of draw slate from the roof or ceiling of the mine in this dip entry. The evidence was in conflict, as to whether it was the duty of the company or of its employés McAvoy and Baker, to see that the draw slate from the roof was pulled down at the point where it fell and injured the plaintiff.

The plaintiff and a man by the name of Cowden were driving this cross entry. The men worked in these entries in pairs of two.

It must be conceded, as contended by defendant's counsel, that when the plaintiff is injured in a place where he has no right to be, or if he goes out of his employment for some private purpose, and not on his employer's business, he has no cause of action against his employer. That seems to be the well established rule. Dresser, Employers' Liability, § 104.

To lend their working implements to each other, with which the laborers were to furnish themselves at their own expense, and with which the defendant had nothing to do, and was not to furnish, was a habit or custom, as appears, indulged by those working in the mine, for their own convenience.

The complaint, in each count, was for a recovery for injuries received by plaintiff, as an employé of defendant, while engaged in and about the business of the master. There is no count for liability of defendant, for plaintiff's injuries, suffered by him in the mine while there by invitation of defendant.

The evidence is lacking to show that the plaintiff was in the mine, at the time of his injury, as an employé of defendant under any contract with it to that end, but was there construing the conditions most strongly against the plaintiff, by invitation of defendant. The evidence shows, without conflict, that plaintiff, at the time he was injured, had gone from his place of work in the entry, to another entry or place of work of other persons in the employment of defendant, to reclaim and...