Republic Iron & Steel Co. v. Fuller
| Decision Date | 17 December 1912 |
| Citation | 6 Ala.App. 448,60 So. 475 |
| Parties | REPUBLIC IRON & STEEL CO. v. FULLER. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.
Action by Blufus Fuller against the Republic Iron & Steel Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
The second count alleges the employment of plaintiff by one George Collins, who had a contract with defendant to get out ore from said mine, and that while plaintiff, by the invitation of defendant, was coming out of said mine from his place of work therein upon a certain car or skip operated by the servants of the defendant, he came in contact with a low place in the roof of the slope of the defendant, or a low hanging rock therefrom, when he was knocked violently from the car or skip, suffering the injuries complained of, and alleges that his injuries and damages were caused by reason and as a proximate consequence of the negligence of the defendant in negligently permitting said roof of said slope at said place to be too low. The third count is similar to the first in the allegation of injury, but alleges the same to have proximately resulted from the negligence of the defendant in negligently operating said car or skip with too great a speed. The third charge refused to the defendant is the affirmative charge as to the second count as amended. Charge 4 is the affirmative charge as to the third count as amended.
Percy Benners & Burr, of Birmingham, for appellant.
Stallings & Drennen, of Birmingham, for appellee.
The case went to the jury on the second and third counts of the complaint as it was amended. Each of these counts avers in effect that the circumstances of the happening of the injury complained of were as follows: The plaintiff was an employé of one Collins, who had contracted with the defendant to get out ore in a mine operated by the latter. As the plaintiff was coming out of the mine from his place of work upon a car or skip operated by the defendant, being on that vehicle rightfully and at the invitation of the defendant, he came in contact with a low place in the roof of the slope of the mine, and was thereby knocked from the car or skip and injured. The second count attributes the injury to the negligence of the defendant in permitting the roof of the slope to be too low at the place where plaintiff came in contact with it. The third count attributes the injury to the alleged negligence of the defendant in operating the car or skip with too great speed.
It is contended in behalf of the appellant (the defendant below) that the second and third counts of the complaint were subject to demurrer on the ground suggesting their failure to show that the plaintiff was rightfully on the defendant's car or skip at the time he was hurt, or that the defendant owed him any duty while he was on its vehicle. The averments of each of those counts show that the plaintiff, though he was not employed directly by the defendant, was on its premises coming from work thereon in which he was employed for which the defendant had contracted and in which it was interested, and that it was on the defendant's invitation that he was coming from his place of work in the mine on a conveyance operated by the defendant. They sufficiently show that the defendant bore such a relation to the plaintiff, a person invited or expected to be on its premises for a business purpose in which it was concerned, as to subject it to a duty to him in reference to the safety of the passways and means of conveyance provided by the defendant for his use in coming from his place of work, and that there was a breach of such duty. Tennessee Coal, Iron & R. Co. v. Burgess, 158 Ala. 519, 47 So. 1029; O'Brien v. Tatum, 84 Ala 186, 4 So. 158; Sloss Iron & Steel Co. v. Knowles, 129 Ala. 410 30 So. 584; 29 Cyc. 454, 456. The demurrers were properly overruled.
To each of the two counts the defendant pleaded specially that the plaintiff, at and prior to the time of receiving the injuries, knew of the negligence complained of and the danger on account thereof, and remained at work an unreasonable length of time after acquiring such knowledge, and thereby assumed the risk of being injured by reason of such negligence. The evidence without conflict sustained this plea so far as it applied to the second count. The testimony of the plaintiff himself was to the effect that he had been working in the mine off and on for eight or nine years; that the low place in the slope had been there all that time to his knowledge; and that he knew the danger of coming in contact with it. So it plainly appears that this source of danger was one which had long been well known to and fully appreciated by the plaintiff, and that he chose to continue to take the risk of it. One cannot maintain an action against another for damages for an...
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