Robinson Mining Co. v. Swiney

• Decision Date: 27 October 1921
• Docket Number: 6 Div. 175.
• Citation: Robinson Mining Co. v. Swiney, 206 Ala. 617, 91 So. 476 (Ala. 1921)
• Parties: ROBINSON MINING CO. v. SWINEY.
• Court: Alabama Supreme Court

91 So. 476

206 Ala. 617

ROBINSON MINING CO. v. SWINEY.

6 Div. 175.

Supreme Court of Alabama

October 27, 1921

Rehearing Granted Nov. 17, 1921.

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action by C. W. Swiney against the Robinson Mining Company for personal injuries while in its employment.Judgment for plaintiff, and defendant appeals.Affirmed on rehearing.

M. L Ward, of Birmingham, for appellant.

Fred Fite, of Birmingham, for appellee.

THOMAS J.

The suit for personal injury resulted in a verdict for plaintiff.

The assignment of error challenges the refusal to give, at defendant's request, written charges which we denominate "A" and "B":

"The plaintiff is bound to use his sense and reasoning faculty and attention for his own safety, is not entitled to recover for injury caused by inattention and indifference on his part, and in this case, if the defect in said stick was so obvious that a man of reasonable care would not have used said stick, then plaintiff would not be entitled to recover in this case."A.

"If the jury believe the evidence in this case that, the time the plaintiff was put to work in tramming cars by the superintendent, plaintiff told said superintendent that he understood tramming, and that he could do the work, then said superintendent had a right to rely on statement of plaintiff and it was not the duty of said superintendent to give him any special instructions."B.

The refusal of charge B was warranted under the evidence in the use of the words "told said superintendent that he understood tramming."The evidence of said superintendent was that-

"He told me he could tram.That was all that was said between he and me about his knowing how to tram, and he went *** to work.*** I told him to go ahead with the work after he said that he could do it."

The effect of this evidence was not more than that plaintiff expressed a willingness to do that work at the request of the superintendent, and that he understood its general nature.On this point plaintiff's evidence was that the superintendent "came down and told"plaintiff to "go up and tram cars," accompanying him to the point of his new labors; that witness had not performed the work of tramming cars previous to this effort which resulted in his injury; nor was he instructed by the superintendent or other of defendant's agents how to operate the cars in tramming.

An inexperienced employé is not supposed to know the dangers of his new employment, and the fact that he expresses a willingness to undertake it on request of his superior in authority does not relieve the employer or superintendent immediately in charge of the duty of instructing and warning the employé of its dangers or perils.King, Adm'r, v Woodstock Iron Co.,143 Ala. 632, 42 So. 27;Woodstock Iron Co. v. Kline, Adm'r,149 Ala. 391, 43 So. 362.An employé with experience and knowledge of the inherent danger of his work assumes only its normal hazard, and not such as may arise from the failure of the defendant or of some other employé to furnish a safe place and proper instrumentalities or agencies; and in the discharge of such duties to use that degree of care exacted by the law, so as to enable an employé or his co-employé to discharge the duties of his employment without undue peril.L. & N. v. Porter,205 Ala. 131, 87 So. 288.If the peril is not obvious and inherent in the conditions under which the employé has to do his work, he may repose reliance upon a discharge of duty by the employer of taking due care or in making due provision (Coosa Portland Cement Co. v. Crankfield,202 Ala. 369, 80 So. 451), and to warn the inexperienced not to negligently order, negligently allow, negligently cause, or negligently fail in its duty to him in doing a dangerous work or act in its prosecution.

The maxim, "Volenti non fit injuria," is founded on the consent, expressed or implied, of the employé with full knowledge and appreciation of obvious danger and the taking of chances of injury or escape from such threatening situation or condition under which he contracts or voluntarily undertakes to discharge his services.The implication of consent does not arise or exist unless the defect and danger are obvious-known to and appreciated by such employé.Choctaw C. & M. Co. v. Dodd,201 Ala 622, 79 So. 54;B. R., L. & P. Co. v. Milbrat,201 Ala. 368, 78 So. 224;Clinton Min. Co. v. Bradford,200 Ala. 308, 311, 76 So. 74;A. G. S. v. Flinn,199 Ala. 177, 74 So. 246;Osborne's Adm'x v. Ala. Steel & Wire Co.,135 Ala. 571, 33 So. 687;Dwight Mfg. Co. v. Holmes,198 Ala. 590, 73 So. 933;S. S. Steel & I. Co. v. White,203 Ala. 82, 82 So. 96;McGeever v. O'Byrne,203 Ala. 266, 82 So. 508;Sou. Ry. Co. v. McGowan,149...