Pioneer Min. & Mfg. Co. v. Thomas

• Decision Date: 24 April 1902
• Citation: 133 Ala. 279,32 So. 15
• Court: Alabama Supreme Court
• Parties: PIONEER MIN. & MFG. CO. v. THOMAS.

32 So. 15

133 Ala. 279

PIONEER MIN. & MFG. CO. v. THOMAS.

Supreme Court of Alabama

April 24, 1902

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by Herbert A. Thomas against the Pioneer Mining &amp Manufacturing Company. From a judgment in favor of plaintiff defendant appeals. Reversed.

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff on account of alleged defects in the condition of the ways, works machinery, or plant of the defendant, said injuries being sustained by the plaintiff while engaged in the defendant's coal mines. The damages claimed in the complaint were $15,000, and it was alleged in the complaint that the injuries were inflicted by reason of a rock falling from the roof of the mine upon the plaintiff. The allegations of negligence contained in the complaint were as follows "Plaintiff alleges that said part of said top or roof fell as aforesaid, and plaintiff suffered said injuries and damages by reason and as a proximate consequence of a defect in the condition of the ways, works, machinery, or plant connected with or used in the said business of defendant, which said defect arose from or had not been discovered or remedied owing to the negligence of defendant, or of some person in the service or employment of defendant, and intrusted by it with the duty of seeing that said ways, works, machinery, or plant were in proper condition, viz., the roof or top of said mine, or the part thereof which fell as aforesaid was loose or otherwise in danger of falling." The defendant pleaded the general issue and several special pleas, setting up the plaintiff's contributory negligence. The facts are sufficiently stated in the opinion. Among the charges requested by the defendant, to the refusal to give each of which the defendant separately excepted, was the general affirmative charge in its behalf. There were verdict and judgment in favor of the plaintiff, assessing the damages at $2,500. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Walker, Tillman, Campbell & Porter, for appellant.

Bowman & Horsh, for appellee.

McCLELLAN C.J.

Action by Thomas against the Pioneer Mining & Manufacturing Company sounding in damages, for personal injuries sustained by plaintiff, an employé of the defendant, through an alleged defect in the condition of the ways, works, etc., of the defendant. The defect counted on and from which the injuries resulted was in the roof of a "heading" leading off from the main slope in defendant's coal mine. The plaintiff and one Lambie, hirelings of defendant, had been set by the company to drive this heading, and they were at work upon it when rock fell from its roof onto plaintiff and injured him. We state the matter thus advisedly. We find no conflict in the evidence to the establishment of the facts we have stated. Not only had plaintiff, along with Lambie, been set to do this work, but all the time up to the falling of the roof they had each been engaged upon it; and at the very moment of the fall of the roof the plaintiff was immediately under the falling rock, engaged in an act which was as much a part of the work he had been put to do and was engaged in doing as anything else he or Lambie had done in carrying out their orders to drive this heading. The evidence is also undisputed that it was the duty of both Lambie and plaintiff in driving that heading to constantly test the roof left above the entry for loose or dangerous rocks or other substances liable to fall from the roof--or ceiling, perhaps more accurately--to the floor, and, upon finding any such rock or other substance, their...