Sloss-Sheffield Steel & Iron Co. v. Thomas
| Decision Date | 21 November 1918 |
| Docket Number | 8 Div. 98 |
| Parties | SLOSS-SHEFFIELD STEEL & IRON CO. v. THOMAS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Franklin County; J.J. Curtis, Judge.
Suit by Joe Thomas a minor, by next friend against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff and defendant appeals. Reversed and remanded.
Suit by Joe Thomas, a minor, by his next friend, against defendant (appellant) to recover damages for injuries sustained while he was employed by defendant in its ore mines in Franklin county. The cause was tried on count 5 of the complaint and defendant's plea of general issue and contributory negligence, resulting in a verdict and judgment for plaintiff in the sum of $2,500; from which the defendant prosecutes this appeal.
Count 5 relied for the recovery upon the negligent conduct of one Will Irvin, who was bank boss and had superintendence intrusted to him, and to whose orders the plaintiff was subject. Said count alleges in substance that on the day of the injury the plaintiff, with others, was engaged in boring a hole into a bank of earth and ore; that the bank might be shot with dynamite so as to loosen the ore therein. Just prior to this time, a quantity of powder had been poured into the hole so that the hole became choked; and while plaintiff was engaged in unchoking the hole, under the direction of Will Irvin, the powder exploded; and in trying to get away from the place of said explosion, and being unable to see on account of the smoke caused by the explosion, the plaintiff ran off a high bank, and by reason of said fall his legs were broken, his jaw bone broken, and he was otherwise bruised and injured, suffered physical and mental pain, and was permanently injured. Plaintiff alleges that the explosion of said powder, which caused said injuries, was caused by reason of, and as a proximate result of, the negligence of Will Irvin. There was no claim in said count for any damages for decreased earning capacity.
The evidence for the plaintiff tended to show that the hole which had been bored in the bank had become choked with the powder and he (plaintiff), with others, was ordered by Irvin to unchoke the same, and for this purpose at first used a stick that the powder had been put in the hole by the order of Will Irvin; that, after failing to unchoke it with a stick or pole, they undertook to unchoke the hole with a drill, which worked up and down, requiring two men to pull the handle, and two to drill. The drill used was 15 or 20 feet long, and about as large around as a chair post, and "had a bit like a diamond," and "they would lift it up and then drop it back." The hole was about 8 feet deep. The drill had a steel point, and while engaged in drilling the powder in this manner the explosion occurred, throwing up dense smoke as well as earth. The plaintiff was blinded thereby, and running away from the place of explosion he ran down the embankment and sustained the injuries set out in the complaint.
One or two witnesses for the plaintiff, after having sufficiently qualified as to their experience with powder and drilling holes through earth and rock and the use of powder therewith were permitted to testify, over the objection of the defendant, that the danger in using a steel drill would be the steel might hit a rock or other hard substance and cause an explosion.
One Creighton, witness for the defendant, testified that he was superintendent of Rockwood Quarry, and had had many years of experience in handling powder, boring holes with steel drills, etc.; and that in his plant holes are bored with steel drills, and are unchoked as was done in the instant case, and that one had never, in his experience, exploded that such was the custom of his plant, which was operated in the ordinary method of mining companies. Thereupon the witness was asked the following question: "In your judgment is it safe or unsafe?" The court sustained the plaintiff's objection thereto.
There was evidence tending to show that plaintiff had a cigarette in his mouth at the time, which was on rebuttal denied by the plaintiff.
The testimony for the defendant further tended to show that, in unchoking holes with steel drills, the drill usually knocks down dirt on the powder; but there was no recollection by any witness of the powder catching fire and blazing out before this one.
The court refused to give the following charges:
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