Pioneer Min. & Mfg. Co. v. Smith

• Decision Date: 11 April 1907
• Citation: 150 Ala. 356,43 So. 561
• Parties: PIONEER MINING & MFG. CO. v. SMITH ET AL.
• Court: Alabama Supreme Court

43 So. 561

150 Ala. 356

PIONEER MINING & MFG. CO. v. SMITH ET AL.

Supreme Court of Alabama

April, 11, 1907

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

Action by A. J. Smith, administrator, against the Pioneer Mining &amp Manufacturing Company. From a judgment for plaintiff defendant appeals. Affirmed.

This was an action begun by appellee against appellant under subdivision 1, § 1749, Code 1896. The defect alleged is that the roof of the main entry of defendant's mine was so insecurely supported that a portion thereof fell upon plaintiff's intestate, injuring him as aforesaid, so that he died; also the negligence of the master, or some person in the service of the master and intrusted by it with the duty of seeing that the ways, works, and machinery or plant were in proper condition. The defect was afterwards amended by striking out the words from the words "the roof" down to andincluding the words "as aforesaid," and inserting in lieu thereof the words "a very large rock weighing several tons, was allowed to remain in the roof of No. 6 east entry of defendant's mine in a loose and dangerous condition, in a condition in which it was likely to fall at any time, and said rock did fall upon plaintiff's intestate, injuring him as aforesaid." Defendants filed two special pleas, besides the pleas of the general issue. The special pleas were: Plea 3: "And for further answer to the complaint, the defendant says that the plaintiff's intestate was engaged in the work of 'drawing stumps' in one of the mines of the defendant; that the work of drawing stumps involved the pulling down of pillars in the entry or heading which had been left to support the overhead roof; that when the stumps are drawn the roof is liable to fall in, and this fact was known to plaintiff's intestate when he undertook the said work; that it was the duty of plaintiff's intestate, or those working with him, to see that the roof back of the place where they were at work was properly supported before drawing which were intended to support the roof; and that plaintiff's intestate negligently failed to prop, or see to it that the roof was propped, at the place where the injury occurred, and his said negligence proximately contributed to his injuries." Plea A: "Defendant says that the plaintiff's intestate had knowledge of the defects complained of in the complaint, and the danger arising from said defect was obvious or open to ordinary observation, or was known to said intestate, and the intestate negligently remained in said service, or negligently allowed himself to be under said rock, which fell, and that said intestate then and thereby assumed the risk incident to being under said rock." There was judgment for plaintiff in the sum of $2,000, and defendant appeals.

Campbell & Johnson, for appellant.

Denson & Denson, for appellee.

ANDERSON J.

The appellant's counsel insists upon a reversal of this cause solely upon the refusal of the trial court to give the general charge requested by the defendant. The complaint was predicated upon subdivision 1 of the employer's liability act (section 1749 of the Code of 1896). There was proof of the defect complained of, that it was known to the master that the master negligently failed to remedy the same, and that said negligence was the proximate cause of the intestate's death; and the defendant was not entitled to the general charge under the general issue.

Plea 3 was one of contributory negligence, ascribing the intestate's death to his negligent failure to prop the roof, which it was a part of his duty to do. There was evidence from which the jury could well...