Sloss-Sheffield Steel & Iron Co. v. Jones

• Citation: 91 So. 808,207 Ala. 7
• Decision Date: 27 October 1921
• Docket Number: 6 Div. 85.
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. JONES.
• Court: Supreme Court of Alabama

91 So. 808

207 Ala. 7

SLOSS-SHEFFIELD STEEL & IRON CO. v. JONES.

6 Div. 85.

Supreme Court of Alabama

October 27, 1921

Rehearing Denied Nov. 24, 1921.

Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson Judge.

Action by O. L. Jones against the Sloss-Sheffield Steel & Iron Company for damages for personal injury sustained while working in the mine of the defendant. Judgment for $4,000 for plaintiff, and defendant appeals. Affirmed.

Tillman Bradley & Morrow, of Birmingham, for appellant.

Graham Perdue and Willard Drake, both of Birmingham, for appellee.

MILLER J.

O. L Jones sues the Sloss-Sheffield Steel & Iron Company, claiming damages for personal injuries received by him caused by a rock falling from the face of the room in its coal mine in which plaintiff has been assigned to work by the defendant.

The case was submitted to the jury on three counts. They were lettered "A," "B," and "I." "A" was framed under subdivision 1 of the Employers' Liability Act (Code 1907, § 3910), and alleged the roof was in an unsafe condition, and a rock was likely to fall and did fall therefrom, and was therefore a defect in the ways, works, and machinery of the defendant. Counts B and I were drawn under subdivision 2 of the same statute. Count B charged Green Hubbard, the defendant's superintendent or mine foreman, with negligently causing or allowing a rock to fall on plaintiff. Count I charged J. M. Kemp, defendant's fire boss, with negligence in failing to inform plaintiff that the rock was in a dangerous and unsale condition, and liable to fall at any time. The defendant pleaded general issue, with leave to give in evidence any matter, if well pleaded, that would be admissible in defense of the action. There was a jury and verdict in favor of the plaintiff; judgment thereon by the court; and from this the defendant appeals.

There were demurrers filed to each of the counts of the complaint. They were overruled by the court to said counts A, B, and I. These rulings of the court are each assigned as error. They are not argued or discussed in brief of counsel for appellant. This court will therefore presume they are waived. Rosenau v. Powell, 184 Ala. 396, 63 So. 1020; L. & N. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001.

The plaintiff's counsel asked the plaintiff:

"What was the duty of the mine foreman with reference to squaring up the room after Moss left, before you went in there? A. He should have went in there and seen the place and seen whether it was squared up before he let me go in there, or went with me."

There was no objection to the question. The defendant moved to exclude the answer on the ground it invaded the province of the jury. The court overruled the motion.

One count charged the mine foreman with negligence-failing to perform his duties. It was competent for those who knew them to testify on the subject. In this way his duties could be made known to the jury. So they could decide what they were, and if he had negligently failed to perform them as charged in the complaint. There was evidence that Arthur Moss had charge of and had been working in these rooms [23 and 24], from the facing of which the rock fell that injured plaintiff. The plaintiff testified: "Mr. Moss left on Monday morning, and I went in there Thursday morning." He also testified that the mine foreman assigned him these rooms to work in the day before he went in there; that his working place before then was in rooms 21 and 22. There was evidence that-

"When a miner quits a room it is his duty to square it up before he leaves it, and, if he does not square it up, it is the duty of the superintendent or mine foreman to see that the room is squared up before he goes in, or to tell him about it or to tell him of the danger and arrange for him to square it up and pay him for it. It is the duty of the fire boss to notify a man, each miner every morning, whether there is any danger in his room. The fire boss goes down at night, and looks, and he is supposed to go in every room and make an inspection of it, and see whether or not it is safe for the miners the next morning. If he saw any dangerous rocks, he is supposed to notify them. *** The superintendent had a mine foreman. *** He was over the mine foreman, whose duty it was to look after the safety of the men, and enforce the rules and see that all working places were safe."

The court overruled objections of defendant to this question asked plaintiff: "I will ask you whether or not the company had time, after Moss left there, to square up that room before you were allowed in there on Thursday morning?"

The witness answered: "Yes sir; they had time."

There was motion by defendant to exclude the answer, which was overruled by the court. It appears that Moss left Monday, and plaintiff was assigned the rooms Wednesday, and went into them Thursday morning. This question called for and this answer gave a statement of a collective fact, involving a conclusion from many facts. Allowing the question to be asked and overruling the motion to exclude the answer were not reversible errors, if errors at all, as the detail facts on which the conclusion or collective fact was based could be easily obtained by defendant on cross-examination of witness, if it was controverted. Witness was a miner, and seemed to have knowledge of the facts as to which he testified. B. R. L. & P. Co. v. Glenn, 179 Ala. 263, 60 So. 111; Ph nix City Bank v. Taylor, 196 Ala. 665, 72 So. 264; Reiter-Connolly Mfg. Co. v. Hamlin, Admr., 144 Ala. 192, 40 So. 280.

The court refused these written charges requested by defendant:

"The court charges the jury that rooms 23 and 24 constituted the working place of the plaintiff at the time he was injured."

"The court charges the jury that rooms 23 and 24 were the working place of the plaintiff at the time he was injured."

Were rooms 23 and 24 the working place of the plaintiff when injured? Was it the duty of the court to so charge the jury as a matter of law? Section 35 of an act approved April 18, 1911 (Gen. Acts 1911, p. 513), reads, in part:

"Every workman employed in coal mines shall examine his working place before commencing work, and after any stoppage of work during the shift, he shall repeat the examination."

Rule 24 of the company, known to plaintiff, was introduced in evidence. It was in force and effect in this mine, and is as follows:

"The miner shall each day examine his working place before beginning work and take down all dangerous slate, or otherwise make it safe by timbering the same before commencing to mine or load coal, and he shall at all times be very careful to keep his working place in a safe condition."

There was evidence by the plaintiff that he had never worked in these rooms, that he had never been in them before he was injured; they were assigned to him the evening before by the mine foreman; that as he passed the fire boss going to the room that morning he told him rooms 23 and 24 were all right; when he reached the rooms, he "just got in there, and stopped," put his hands on his knees, looked around to examine to see what, if anything, was to be done, when the rock fell and injured him; he did not have time to examine it before it fell; did not know what kind of condition the place was in before he entered the room and the rock fell. Witness for appellant testified that plaintiff had worked in these rooms before, that he and Moss had been operating jointly these two rooms and rooms 21 and 22 for weeks prior to the accident, and up to the time when Moss quit on Monday.

Under the foregoing statute and rule of the company, the mere assignment by the company of the rooms to the plaintiff for him to work in did not as a matter of law constitute those rooms his working place. After assignment of them to him, he must assume actual control of them, take possession, and thereafter have reasonable time to inspect and examine them to see if they are in safe condition before commencing work, for them to constitute in law his working place. The miner must have opportunity to go to the room, after it is assigned to him, and a reasonable time to examine it to see that it is in safe condition and for the purpose of commencing work before the room can be in fact under the law his working place. Under the disputed evidence in this case on this subject, the court properly refused these charges, and left it for the jury to decide whether rooms 23 and 24 were the working place of plaintiff at the time he was injured by the falling rock, as contemplated by the statute and the rule of the company. Section 35, Gen. Acts 1911, p. 513; Seagle v. Stith Coal Co., 202 Ala. 3, 79 south. 301. These written charges were given the jury by the court on this subject at defendant's request:

"It is not essential, to constitute a room or rooms the working place of a workman in a coal mine, that he shall have done work in said room or rooms."

"The court charges the jury that it is not necessary for plaintiff to have worked in rooms 23 and 24 before he was injured to constitute such room his working place, if you believe from the evidence that said rooms were assigned to him as and for a working place on the night before by the mine foreman."

"It is not essential to constitute a room or rooms the working place of a workman in a coal mine that he shall have done work in said room or rooms; it is the working place of such workman if it has been assigned to him by the mine foreman and an agreement made that he shall take over such room or rooms."

"If you believe from the evidence in this case that on the night before plaintiff was injured there was an agreement between the mine foreman and the plaintiff that the plaintiff should take over rooms 23 and 24 for the purpose of

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