Robinson Min. Co. v. Tolbert

• Decision Date: 19 November 1901
• Citation: 31 So. 519,132 Ala. 462
• Parties: ROBINSON MIN. CO. v. TOLBERT. [1]
• Court: Alabama Supreme Court

31 So. 519

132 Ala. 462

ROBINSON MIN. CO. v. TOLBERT. ^[1]

Supreme Court of Alabama

November 19, 1901

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

Action by Samuel Tolbert against the Robinson Mining Company for injuries received while in the employ of defendant. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Walker Percy, for appellant.

Bowman & Harsh, for appellee.

HARALSON J.

The case was tried alone on the second and third counts in the complaint, on which issue was joined, after a demurrer to the third count was overruled. The other counts were eliminated by the rulings of the court, in favor of defendant. There were no questions raised on the introduction of evidence, and the only questions presented for review are, the overruling of the defendant's demurrer to the third count, and in the refusal of the court to give the several charges requested by defendant.

The averment of negligence in the third count is, that plaintiff "received said injuries and suffered said damage as aforesaid, by reason and as a proximate consequence of the negligence of a person, to wit, one Frierson, in the service or employment of defendant, and entrusted by defendant with superintendence, whilst in the exercise of such superintendence, to wit, said person negligently failed to warn or notify plaintiff of the presence of the large quantity of a high explosive, at or near the place where plaintiff was at work as aforesaid, though there was present at or near the said place at which plaintiff was at work, a large quantity of a high explosive which exploded as aforesaid."

The demurrer to this count was, that "it is not alleged that the said Frierson knew of the presence of a large quantity of a high explosive at or near the place of work of the plaintiff at the time of the injury."

The plaintiff was not bound to make such an allegation in his complaint. It was only necessary to allege, in the manner done, the negligence of defendant, and prove that defendant knew, or was in position, by the exercise of reasonable prudent care, to know, of the presence of the high explosive at or near the place of the injury. Railroad Co. v Coulton, 86 Ala. 129, 5 So. 458; Same v. Allen's Adm'r, 78 Ala. 494.

It cannot be questioned, that the use of dynamite is a peculiarly hazardous business, in which very great care should be taken to prevent accidents. It is very properly stated by Mr. Bailey, "It is presumed the master, or the person placed in charge of a hazardous business or department thereof is familiar with the dangers, latent or patent ordinarily accompanying the business he had in charge." It is his duty to inform the servant of latent dangers, of which he has knowledge, or of which he is presumed to know of which the servant has no knowledge and where no knowledge can be imputed to him, and also of obvious dangers, which the servant is not presumed to appreciate or understand.

"He should inform him of the particular perils and dangers of the service." Bailey, Mast. Liab. 109; Wood, Mast. & S. §§ 335, 354; Holland v. Railroad Co., 91 Ala. 444, 8 So. 524, 12 L. R. A. 232; Railroad Co. v. Boland, 96 Ala. 632, 11 So. 667, 18 L. R. A. 260; Perry v Marsh, 25 Ala. 659. Mr. Elliott, as to defects in machinery, lays down the rule to be: "The general rule is that an employer is not liable to an employé for injury caused by latent defects in machinery. It is not to be understood, however, that the employer is not under a duty to exercise ordinary care in causing reasonably careful and proper inspections to be made. If the defect is one which an ordinarily careful inspection would reveal, it cannot be regarded as a latent defect within the rule which exonerates the master from liability in cases of injuries attributable to latent defects, but a defect which reasonably careful inspection will not reveal, is a latent defect within the rule." 3 Elliott, R. R. §§ 1275, 1348...