Porter v. Tennessee Coal, Iron & R. Co.

• Decision Date: 11 June 1912
• Citation: 59 So. 255,177 Ala. 406
• Parties: PORTER v. TENNESSEE COAL, IRON & R. CO.
• Court: Alabama Supreme Court

59 So. 255

177 Ala. 406

PORTER v. TENNESSEE COAL, IRON & R. CO.

Supreme Court of Alabama

June 11, 1912

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

Action by Leanna Porter, administratrix of Ira Porter, deceased against the Tennessee Coal, Iron & Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The complaint contains 11 counts, the first being under the Employer's Liability Act (Code 1907, § 3910), and counting on the negligence of the superintendent. The second third, fourth, and fifth counts declare on the negligence of the defendant for not securing the roof of the mine so as to render it safe, and in negligently allowing the slate to fall from the roof upon the intestate, killing him. Counts 6 and 7 are in wanton negligence, and based on the same state of facts. Count 8 declares on the failure to provide a reasonably safe and secure place for intestate to perform the duties of employment. Count 9 is in wanton negligence, based on the same state of facts as count 8. Count 10 is in simple negligence, and is drawn under the first subdivision of the Employer's Liability Act. Count 11 alleges plaintiff's intestate was rightfully at work in said mine at the time of the injury, assisting one Stewart Hollins, who was employed by defendant as a contractor to mine ore from its said mine, and the negligence is alleged to be that of the servants or agents of the defendant, while acting within the line and scope of their employment, in that they negligently permitted the roof of said mine to fall upon intestate.

Plea 3 is as follows: "Plaintiff's intestate was himself guilty of such negligence as proximately contributed to his injuries, in that the said Ira Porter, with knowledge and notice that a part of the top or roof of said mine was loose or in danger of falling, and with knowledge and notice that should the same fall when he was under or near the same injury would probably result to him, yet, nevertheless, he went under or near the same, whereby, and as a proximate consequence of which, said rock fell upon him, and so injured him that he died."

Plea 7 "Plaintiff's intestate was guilty of contributory negligence, which proximately contributed to the injuries which caused his death, in that plaintiff's intestate was at work in the defendant's mine at a place in said mine where the roof thereof was unsupported near the face by timbers; that immediately before plaintiff's intestate received his injuries a shot had been made in said mine, and that said shot knocked down the timbers which supported that portion of the roof which afterwards fell upon intestate; that after said timber was so knocked down said roof was left unsupported by timbers a distance of, to wit, 12 feet from the face of the heading; and defendant avers that the work under a roof unsupported for a distance of 12 feet from the face of the heading, without first sounding said roof to ascertain whether or not there were any loose rock therein, and, in the event there was a loose rock, to quarry the same down, was an obvious and patent danger, and that a man of ordinarily reasonable prudence, of like experience as had plaintiff's intestate, would not have attempted to work upon said roof in such condition without first sounding or seeing that the same was sounded and quarried down; and defendant avers that plaintiff's intestate, with knowledge of said timbers having been knocked out, and with knowledge that said roof was thereby left unsupported the distance of, to wit, 12 feet from the face of the heading, and with knowledge of the fact therein referred to negligently attempted to work under said roof so unsupported, and within the distance of 12 feet from the face of the heading, and without first sounding said roof, and quarrying down loose rock, or seeing that it was done, and with knowledge that said roof had not been sounded and loose rock quarried down, and as a proximate consequence of his negligence in such regard he received the injuries that caused his death by reason of said unsupported roof falling upon it."

Plea 8: "That plaintiff's intestate was himself guilty of contributory negligence which proximately contributed to cause his said alleged injuries, and that said negligence consisted in this: That it was plaintiff's intestate's duty, after a shot had been made in the face of the heading, to sound the roof and quarry down the loose rock caused by said shot before attempting to work under said roof. And defendant avers that after a shot had been made in said mine, and loose rock thereby created, plaintiff's intestate negligently failed to sound said roof and quarry down the loose rock, and that as a proximate consequence of his negligence in such regard the same fell upon him and so injured him that he died."

The following part of the court's oral charge was objected to: "And it would follow that Ira Porter would not be a servant or employé of the defendant, but he would be a servant or employé of Stewart Hollins." In this connection, the record sets out that portion of the oral charge wherein the judge drew the distinction between an independent contractor and when he would not be. Part of the oral charge marked "2," is as follows: "I charge you, gentlemen of the jury, that if you find Stewart Hollins as an independent contractor, then it would follow that Ira Porter would not be a servant or employé of defendant."

The following charges were given at the instance of the defendant:

(6) "The court charges the jury that, if you are reasonably satisfied from the testimony that it was the duty of Ira Porter, after the shot had been made and the post blown down, before going under the roof where such post had been standing, and in close proximity to where such shots had been made, to sound such roof, and to ascertain if there were any loose rock, or see that it was done, and to pull down such loose rock as was found by such sounding, and you are further satisfied by reason of such testimony that he failed to perform such duty, and went under said roof after the prop had been blown out without first sounding said roof, or seeing that it was sounded, to ascerain whether there was any loose rock, and pulling said loose rock down, and his failure to perform such duty was the proximate cause of his injury, then I charge you that you cannot find for plaintiff."

(7) "The court charges the jury that, if you are reasonably satisfied from the evidence that Ira Porter had actual knowledge of the existing conditions at the time in the mine where he was hurt that would have suggested to a man of ordinary intelligence the perils of the situation, and would have suggested to a man of ordinary intelligence the danger of working under a roof, where the props had been blown out, and where the roof had not been sounded or rock quarried, then I charge you that if he did work under such roof with such knowledge, and under such circumstances, and as a proximate result thereof was killed, this plaintiff cannot recover."

(8) "Th...