Sloss-Sheffield Steel & Iron Co. v. Stapp

• Decision Date: 04 November 1915
• Docket Number: 6 Div. 70
• Citation: 195 Ala. 340,70 So. 267
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. STAPP.
• Court: Alabama Supreme Court

70 So. 267

195 Ala. 340

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

6 Div. 70

Supreme Court of Alabama

November 4, 1915

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Lizzie L. Stapp, as administratrix, against the Sloss-Sheffield Steel & Iron Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

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

W.A Denson, of Birmingham, for appellee.

MAYFIELD J.

The action is under the Employers' Liability Act, for the wrongful death of a servant. There were 14 counts in the complaint, but all were eliminated except one, the last. It declared under the first subdivision of the act, and the defect alleged and relied upon for a recovery was that "the means used for holding said trip of cars stationary upon the upper yard of defendant's said mine was defective." Intestate was engaged in mining coal as a servant of the defendant, and was killed in the mine by a trip of tram cars getting loose and running back into the mine by gravity.

The defendant filed a great number of special pleas, setting up contributory negligence and assumption of risk. Demurrers were sustained to pleas 5, 6, 8, 9, 11, 12, 14, and 15, and overruled as to others. There is no necessity to treat each of these many pleas separately. Either they were each properly sustained, or demurrers were overruled to other pleas which were in legal effect the same as the pleas to which demurrers were sustained, except as we will hereinafter point out.

Pleas 5 and 6 alleged as defensive matter the following:

"(5) *** That the said Sloss-Sheffield Steel & Iron Company had, when it employed the said intestate, delegated to him the duty of providing a reasonably safe place for himself and its other employés in said mine to work in, and the said intestate negligently failed to exercise reasonable care to provide such a place, and as a proximate consequence thereof received his alleged injuries."

"(6) *** The said Sloss-Sheffield Steel & Iron Company had intrusted to the said intestate the duty of seeing that its ways, works, machinery, and plant in and about said mine were in proper condition, and the alleged defect had not been discovered or remedied as a proximate consequence of the negligence of the intestate, who negligently failed in and about the performance of said duty as he might have done by the exercise of reasonable care and prudence under all the circumstances."

Plea 5 was both inapt and bad. It was inapt, because it was not appropriate to a count declaring under the statute, being so only in actions counting on common-law liability; and it was bad because, in this state, the master cannot delegate or avoid the common-law duty of providing a safe place, though he may the duty of maintaining it after it is actually provided.

Plea 6 however, was both apt and good, and there is no other plea setting up the same defense. It was reversible error to sustain a demurrer to this plea. It will be observed that both the count and the plea practically follow the language of the statute; the count alleging that the defect complained of "arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of the defendant, and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition," and the plea answering this by saying:

"Yes, but the intestate himself was this person whom the master had employed and intrusted with the duty of seeing that the ways, works, machinery, or plant were in proper condition, and it was his negligence which approximately caused the injury for which his personal representative seeks to recover damages."

If the intestate himself was the servant...