Sloss-Sheffield Steel & Iron Co. v. Hubbard

• Decision Date: 20 April 1915
• Docket Number: 721
• Citation: 14 Ala.App. 139,68 So. 571
• Court: Alabama Court of Appeals
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. HUBBARD.

68 So. 571

14 Ala.App. 139

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

No. 721

Court of Appeals of Alabama

April 20, 1915

Rehearing Denied May 11, 1915

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

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

Tillman, Bradley & Morrow and E.L. All, all of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

BROWN J.

The case was submitted to the jury on the issues presented by the second count of the complaint, and the defendant's plea of the general issue. This count alleged that, while plaintiff was rightfully in the defendant's mine as a workman in the employ of one Baker, who was working for defendant as a contractor engaged in and about mining iron ore for defendant in its mine, a large rock constituting the roof of one of the entries fell upon and injured him. The fact that Baker was an independent contractor, and that the plaintiff was an employé of Baker, as alleged in the complaint, does not seem to have been controverted by the defendant in any way, and the trial was had on the assumption that this was the true relation between the parties. Travis v. Sloss-Sheffield Steel & Iron Co., 162 Ala 605, 50 So. 108. Under this state of facts the plaintiff was rightfully in the mine on the invitation of the defendant and it owed him the duty of using reasonable or ordinary care to keep the premises in a safe condition, so that the plaintiff would not be unreasonably or unnecessarily exposed to danger. Tenn. Coal, Iron & Railroad Co. v Burgess, 158 Ala. 525, 47 So. 1029; Lookout Mountain Iron Co. v. Lea, 144 Ala. 169, 39 So. 1017; Ala Steel & Wire Co. v. Clements, 146 Ala. 259, 40 So. 971.

As said by the court in Tenn. Coal, Iron & R.R. Co. v. Burgess, supra:

"It is obvious that the duty must vary according to the character of the danger, the nature of the premises, and the circumstances under which they are to be visited. In the present case, manifestly, the duty did not end when plaintiff entered the premises, because, forsooth, at that time they were in a reasonably safe condition. But, taking into consideration the nature of the premises and the kind of work there carried on, in measuring defendant's duty, it may be said to be a matter of common knowledge that the conditions in an ore mine, with respect to the safety of the operatives, are ever and constantly changing; indeed, that every stroke of the pick may be an appreciable factor in the modifications of such conditions."

This is illustrated by the evidence in the instant case, tending to show that the defendant maintained an extra gang with a foreman in charge, whose duty it was to timber the roof in the several entries of the mines as the work progressed and as occasion required, to prevent it from becoming dangerous, and that it was one of the principal duties of the mine foreman to inspect the conditions of the roof of the mines and protect the workmen in the mine from such dangers. Tenn. C., I. & R.R. Co. v. Burgess, 158 Ala. 525, 47 So. 1029; 1 Labatt's Master & Servant, § 158; Sloss-Sheffield S. & I. Co. v. Stewart, 172 Ala. 516, 55 So. 785.

But the appellant insists that if the plaintiff's injuries were the proximate result of negligence at all, it was the negligence of one Tom Gamble, who, appellant contends, was an independent contractor, and that it is not liable for his negligence or the negligence of his servants. The proof shows without dispute or room for adverse inference that the rock that fell upon and injured the plaintiff was from the roof of an entry to the heading in which Gamble and his men were engaged in mining, and there is evidence tending to show that Gamble had engaged to prop the roof of the entry in that part of the mine as he proceeded with the work of driving the heading, but thereafter it was defendant's duty to look after the condition of the roof and keep it safe; that the work Gamble was engaged in doing had proceeded until this point had been passed a considerable distance; and that plaintiff's injuries were caused by the condition of the entry, and not the work Gamble was engaged in doing. Sloss-Sheffield Steel & Iron Co. v. Green, 159 Ala. 178, 49 So. 301.

Plaintiff's employer, Baker, had no control over the place where plaintiff was injured, and no duty to perform with reference thereto, and there was no contractual relation between plaintiff and Gamble, and defendant insists that, it having committed to Gamble the duty of maintaining the safety of the roof in the entry where plaintiff was injured, it is not liable. In the first place, the defendant could not relieve itself of liability by committing to an independent contractor the performance of a specific duty it owed the plaintiff to maintain this roof in reasonably safe condition, and, whether Gamble was an independent contractor or an employé of the defendant, the defendant would be liable if, as a proximate consequence of his negligence in leaving the roof in a dangerous condition, plaintiff's injuries resulted. The law is that the person upon whom a positive duty is imposed by law cannot delegate in any manner the performance of that duty so as to relieve himself from responsibility for a condition thus created. Both the duty and the responsibility rest where the duty is imposed, and hence the principal is liable for any injury that arises to others from the nonperformance of the duty, or in consequence of its having been negligently performed "either by himself or by a contractor employed by him." 1 Bailey on Pers.Inj. 125 (c); Atlanta & F.R. Co. v. Kimberly, 87 Ga. 161, 13 S.E. 277, 27 Am.St.Rep. 231; H. & L.R.R Co. v. Meador, 50 Tex. 77; L. & N.R.R. Co. v. Smith's Adm'r, 134 Ky. 47, 119 S.W. 241...