Sloss-Sheffield Steel & Iron Co. v. Triplett

• Citation: 4 Ala.App. 323,58 So. 109
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. TRIPLETT.
• Decision Date: 16 January 1912
• Court: Alabama Court of Appeals

58 So. 109

4 Ala.App. 323

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

Court of Appeals of Alabama

January 16, 1912

Rehearing Denied Feb. 22, 1912.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by J. C. Triplett against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Affirmed.

For answer of Supreme Court to certified question, see 58 So 108.

The first count is as follows: "Plaintiff claims of the defendant $5,000 damages, for this: That heretofore, on, to wit, January 7, 1910, defendant was engaged in the following business in Jefferson county, Alabama, viz., the operation of a coal mine for the mining of coal, and plaintiff was in the service or employment of the defendant in the capacity of, to wit, a track man, and while in such service or employment engaged in the discharge of his duty as such employé, the plaintiff had his shoulder injured. [[[Here follows catalogue of injuries and damages.] And plaintiff avers that his said wounds and injuries were the proximate consequence and caused by reason of a defect in the ways, works, machinery, or plant connected with or used in the business of defendant, which said defect arose from, or had not been discovered or remedied, owing to the negligence of the defendant, or of some person in the service or employment of the defendant and intrusted by it to see that the ways, works, machinery or plant were in proper condition, viz.: There was not a sufficient stay to hold or inclose the rope which drew the tram cars."

The fifth assignment of error is as follows: "Overruling appellant's objection to the following question propounded by appellee to Dan McKay: 'I will ask you to state whether or not that post was high enough to keep the cable inside of the post, and to protect people on the passageway where he was hurt.' "

The eleventh assignment of error is as follows: "Refusal to give the following charge: 'If you believe from the evidence in this case that the post or stay was erected solely for the purpose of preventing the cable from pulling the cars from the track, you cannot find for the plaintiff under the first count.' "

Assignment 15: "In refusing the following charge: 'If you believe from the evidence in this case that the stay or post described in the complaint was erected and maintained for the purpose of preventing the cable from pulling the car off the track under ordinary conditions, and the plaintiff knew it was not erected and maintained for the purpose of protecting persons engaged in keeping the track in repair, and that it would not furnish such protection in every instance, you must find for the defendant.' "

Tillman Bradley & Morrow and J. S. Stone, for appellant.

Gaston & Pettus, for appellee.

DE GRAFFENRIED, J.

1. It is evident from the first count of the complaint that the appellant, in the operation of its coal mine, drew the coal from its mine by means of tram cars operated by a cable or rope. It is a matter of common knowledge that, in mines so operated, the tram cars are let down into and drawn from the mines by means of cables attached to hoisting machines, called "drums." We think that the first count of the complaint shows with sufficient certainty that the appellee was injured by the cable which drew the tram cars, and that the injury was due to the fact that appellant had not provided a proper or sufficient stay to keep the cable in its usual and proper position.

2. Being in doubt as to whether count 4 of the complaint was subject to the demurrer interposed to it by the appellant, this court certified that question to the Supreme Court, and that court, in an opinion rendered on the certification, held that said count was not subject to the grounds of demurrer assigned to it by appellant. Sloss-Sheffield Steel & Iron Co. v. J. C. Triplett, 58 So. 108.

3. There does not seem to have been any dispute in the evidence about the fact that the post which had been placed by the side of the passageway, near the entrance to the mine, was insufficient to hold the cable in its proper place, in case of a wreck or a sudden stoppage of the machinery used in bringing the tram cars from the mine. It is therefore...