Sloss-Sheffield Steel & Iron Co. v. Green

• Decision Date: 15 April 1909
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. GREEN.
• Court: Alabama Supreme Court

49 So. 301

159 Ala. 178

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

Supreme Court of Alabama

April 15, 1909

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

Action by Robert Green against the Sloss-Sheffield Steel & Iron Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Tillman Grubb, Bradley & Morrow and L. C. Leadbeatter, for appellant.

Bowman Harsh & Beddow, for appellee.

DENSON J.

This is an action by an employé against his employer to recover damages alleged as consequent upon a personal injury sustained by the employé while he was engaged in the performance of his duties, to wit, mining coal; such injury being caused by a part of the roof or top of the employer's mine falling upon him. The case is presented by a complaint containing three counts; but the second having been charged out at the request of the defendant, is not before us. Indeed, it is not necessary to consider the cause in respect to any count other than the third count as amended. This count presents a cause of action under the second subdivision of section 1749 of the Code of 1896 (section 3910 of the present Code). The count ascribes the injury to the negligence of C. M. Parker whilst he was in the exercise of superintendence, in that he "negligently caused or allowed said part of said roof or top to fall upon or against plaintiff." At the conclusion of the evidence the defendant requested, in proper form, the general affirmative charge in respect to this count, which was refused by the court.

There can be no doubt that, under the count, to support the ruling of the court refusing the charge, it is essential that the evidence be such as to afford a reasonable inference that Parker had superintendence intrusted to him, and that the injury was caused by his negligence whilst in the exercise of such superintendence. Drennen v. Smith, 115 Ala. 396, 22 So. 442. "To hold otherwise would be to fasten liability on the master to the servant for that which is at most negligence of a fellow servant, having no greater power or authority than the servant who complains of the injury." City, etc., v. Harris, 101 Ala. 564, 570, 14 So. 357; Dantzler v. De Bardeleben, 101 Ala. 309, 14 So. 10, 22 L. R. A. 361. The testimony tends to show that C. M. Parker was defendant's "foreman, mine boss, or bank boss." One of the witnesses--a miner in the employment of the defendant at the time of the injury--testifying in this respect, said: "Mr. Parker was the defendant's mine foreman over us at that time." The plaintiff testified, substantially, that he entered into the employment of the defendant on the morning of the day on which he was injured, and that Mr. Parker, the mine boss, put him to work at the place where he was injured; that he had been at work only a short while when a large rock fell from the roof or top of the entry upon his leg and broke it.

There was other testimony in the record tending to show that the rock fell from the roof of the entry. The entry, as the evidence shows, was 8 feet wide and 5 feet 6 inches high, and extended at least 100 feet further into the mine, beyond the point where the plaintiff was put to work by the foreman. It is also shown, without conflict in the evidence, that it was the duty of the foreman or mine boss to inspect the roof of the entry; and the evidence tends to show that, by a proper inspection prior to the time the plaintiff was put to work, the foreman could have determined whether or not the roof of the entry was "loose or sound, before it fell," and, of consequence, whether or not any interference with conditions as they existed at the time and place, by mining, would probably cause any giving away of the roof.

On these tendencies of the evidence found in the record, and by the light of all our cases, we feel that we are on safe ground in holding that the evidence affords a reasonable inference of superintendency intrusted to Parker over both the miners and the mine, especially touching the condition of the mine--its safety or not. Culver v. Alabama Midland Railway Co., 108 Ala. 332, 18 So. 827; Robinson v. Tolbert, 132 Ala. 462, 31 So. 519; Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 10 So. 87; Bessemer, etc., Co. v. Campbell, 121 Ala. 50, 61, 25 So. 793, 77 Am. St. Rep. 17. This being true, it would follow that it would be negligence for him to "create or allow such condition of things to exist" as would "render an accident probable through the means" even "of an intervening agency, which due care might have fore seen." Seaboard Mfg. Co. v. Woodson, supra; Lynch v. Allyn, 160 Mass. 248, 35 N.E. 550; Connolly v. Waltham, 156 Mass. 368, 370, 31 N.E. 302; McCauley v. Norcross, 155 Mass. 584, 30 N.E. 464; Malcolm v. Fuller, 152 Mass. 160, 25 N.E. 83; Dresser, Employer's Liability, bottom of page 290.

We think the evidence, and tendencies of evidence, heretofore recited, sufficient to support reasonable inferences that Parker was chargeable with knowledge of the condition of the proof of the entry, or that it was his duty, in the exercise of reasonable care, to know its condition, and that he was guilty of actionable negligence, within the exercise of his superintendency, in putting the plaintiff to work at the place in question. See cases cited supra. Upon the foregoing considerations, the court holds that the affirmative charge was properly refused.

After it was shown, without objection and without conflict in the evidence, that it was the duty of the defendant company to inspect the roof of the entry in the mine, the plaintiff sought to prove by a witness (one Mason), who was a miner in the same mine, and in the employment of the defendant, at the time of the casualty in question, that it was the duty of the foreman or bank boss to inspect and keep up the roof of the entry, and for this purpose asked him this question: "In that coal mine whose duty was it to inspect and prop and keep up the roof in the entry?" The question was objected to on the single ground that it called for a...