Appeal
from Circuit Court, Jefferson County; A. A. Coleman, Judge.
Action
by S. C. Tilson against the Sloss Iron & Steel Company.
Plaintiff had judgment, and defendant appeals. Affirmed.
This
action was brought by the appellee, Spencer C. Tilson
against the appellant, the Sloss Iron & Steel Company, to
recover damages for personal injuries. The complaint
contained four counts, which were in words and figures as
follows: "(1) Plaintiff claims of defendant fifteen
thousand dollars as damages, for that heretofore, to wit, on
the 30th day of November, 1900, defendant was operating a
coal mine at or near Blossburg, Jefferson county, Alabama
together with certain tram cars in said mine; that on said
day, while plaintiff was in the service or employment of
defendants, and engaged in or about the said business of
defendant in or about the operation of said mine, one or more
of said cars separated from others of said cars and ran with
great force or violence down an incline upon or against
plaintiff in said mine, and as proximate consequence thereof
plaintiff's ankle was dislocated, one or more of the
bones of his ankle or leg were broken, and plaintiff was cut
mashed, bruised, sprained, one or more of his joints
stiffened, and otherwise injured in his person, and was made
sore and sick, was crippled and disfigured for life, was
rendered for a long time unable to work and earn money, was
rendered permanently less able to work and earn money
suffered great mental and physical pain, and was put to great
trouble, inconvenience, and expense for medicine, medical
attention, care and nursing in or about his efforts to heal
and cure his said wounds and injuries. Plaintiff avers that
said car or cars ran upon or against him as aforesaid and he
suffered said injuries and damage by reason and as a
proximate consequence of a defect in the condition of the
ways, works, machinery, or plant used in or connected with
the said business of defendant, which said defect arose from
or had not been discovered or remedied owing to the
negligence of defendant, or of some person in the service or
employment of defendant, and intrusted by defendant with the
duty of seeing that the said ways, works, machinery, or plant
were in proper condition, viz., the coupling appliance or
apparatus by which one or more of said cars were coupled to
another, or others of said cars were weak, loose, spread, or
otherwise improper or unfit for the purpose for which same
was being used by defendant. (2) Plaintiff refers to and
adopts all the words and figures of the first count from the
beginning thereof to and including the word 'viz.'
where it first occurs in said count. Plaintiff further avers
that the track upon which the said tram cars ran in said
mines was old, worn, uneven, or otherwise improper or unfit
for said purpose. (3) Plaintiff refers to and adopts all the
words and figures of the first count from the beginning
thereof to and including the words 'heal and cure his
said wounds and injuries,' where they first occur
together in said count. Plaintiff further avers that said car
or cars ran upon or against him as aforesaid, and he suffered
said injuries and damage by reason and as a proximate
consequence of the negligence of a person in the service or
employment of defendant, and intrusted by defendant with
superintendence, whilst in the exercise of such
superintendence, viz., one Elwood, negligently caused
plaintiff to be in a place in said mine where said cars were
in danger of running upon or against him as aforesaid
without properly and sufficiently warning or notifying
plaintiff of said danger. (4) Plaintiff claims of defendant
the further sum of fifteen thousand dollars as damages for
that heretofore, to wit, on the 30th day of November, 1900,
defendant was operating a coal mine at or near Blossburg,
Jefferson county, Alabama, together with certain tram cars in
said mine; that on said day, while plaintiff was in said mine
by the invitation of defendant, on business with defendant
connected with the operation of said mine, though plaintiff
was not in the service or employment of defendant, defendant
negligently caused or allowed one or more of said cars to
break loose from or become separated from others of said
cars, and run upon or against plaintiff in said mine, and as
a proximate consequence thereof plaintiff suffered the
injuries and damage set out in the first count of this
complaint."
The
defendant demurred to the first and second counts of the
complaint upon the following grounds: "(1) For that the
count is vague, uncertain, and indefinite. (2) For that it
does not appear what the defect complained of consisted in.
(3) For that it does not appear that the tram cars were a
part of the ways, works, machinery, or plant of the
defendant." To the third count the defendant demurred
upon the following grounds: "(1) For that the count
fails to show any duty owed by defendant to plaintiff. (2)
For that the count shows that the plaintiff assumed the risk
of being in the position in which he was at the time he was
injured. (3) For that the negligence complained of is not
shown by the count. (4) For that it is not averred or shown
that the superintendent or person charged with the
superintendence was guilty of any negligence." To the
fourth count the defendant demurred upon the following
grounds: "(1) For that the count fails to show any
relation existing between the plaintiff and defendant whereby
the defendant owed any duty to the plaintiff. (2) For that
the count shows that the plaintiff was a mere trespasser. (3)
For that the count shows that plaintiff voluntarily assumed
the risk of being in said coal mine." These demurrers
were overruled. Thereupon the defendant pleaded the general
issue, and by several special pleas set up the contributory
negligence of the plaintiff. The facts of the case are
sufficiently stated in the opinion.
The
court, at the request of the defendant, gave the jury the
following written charges: "(11) The plaintiff in this
case cannot recover as a person invited upon the premises of
the defendant unless there was a defect or defects in one or
more of the tram cars, known to the defendant and unknown to
the plaintiff. (12) If from the evidence you believe that the
plaintiff was at the place where he was injured only by
invitation of the defendant, I charge you that you cannot
render a verdict in his favor, unless you also believe from
the evidence that the defendant actually knew that there was
some defective condition about the cars which ran down the
slope, which would probably cause them to break loose and run
down the slope." The defendant also requested the court
to give to the jury the following written charges, and
separately excepted to the court's refusal to give each
of the charges as asked: "(1) If you believe the
evidence in this case, you must find a verdict in favor of
the defendant. (2) If you believe the evidence in this case
you cannot find for the plaintiff under the fourth count of
the complaint. (3) I charge you that you cannot find from the
evidence that the plaintiff was at the place where he claims
to have been hurt by invitation of the defendant. (4) If you
believe from the evidence that the plaintiff went into the
slope only by invitation of the defendant, then I charge you
that he assumed all the risks which were incident to letting
down tram cars into the mine. (5) I charge you that you
cannot find from the evidence in this case, if you believe
it, that the plaintiff was in the service or employment of
the defendant at...
