Southern Bauxite Min. & Mfg. Co. v. Fuller

• Decision Date: 11 December 1902
• Citation: 43 S.E. 64,116 Ga. 695
• Parties: SOUTHERN BAUXITE MIN. & MFG. CO. v. FULLER.
• Court: Georgia Supreme Court

43 S.E. 64

116 Ga. 695

SOUTHERN BAUXITE MIN. & MFG. CO. v. FULLER.

Supreme Court of Georgia

December 11, 1902

Syllabus by the Court.

1. Where the evidence for the plaintiff makes out his case as laid in his petition, it is not error to refuse to grant a nonsuit.

2. A master is bound to provide for his servant a reasonably safe place in which to work, and is liable to the servant for injuries occasioned by a failure to perform this duty, even though such failure may have been due to the negligence of a fellow servant of the one who was injured.

3. The writing introduced in evidence, by which it was urged that the plaintiff was estopped to hold the defendant responsible for its alleged negligence, was at most an admission of the plaintiff, susceptible of explanation by him; and it was not erroneous to refuse to give to the jury instructions not applicable to such a state of facts.

4. The verdict was supported by the evidence, and it does not appear that the court erred in overruling the motion for a new trial.

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by R. O. Fuller against the Southern Bauxite Mining & Manufacturing Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Fouché & Fouché, for plaintiff in error.

Dean & Dean, for defendant in error.

CANDLER J.

This was a suit against a mining company for damages on account of personal injuries alleged to have been sustained by the plaintiff while working as a miner in the employment of the defendant in a tunnel belonging to it. The petition alleged that by reason of the negligent failure of the defendant to provide sufficient braces to support the roof of the tunnel a quantity of clay fell from the roof and struck the plaintiff causing the injuries described, and on account of which suit was brought. It also alleged that, by reason of his inexperience as a miner, the plaintiff did not know what was necessary to render the tunnel safe, and could not, in the exercise of ordinary diligence, have prevented the injuries which he received. The defendant, in its answer, denied that it had been negligent, or that the plaintiff was as seriously injured as he claimed, and averred that, if he was injured it was through the negligence of a fellow servant, and was caused by his voluntary exposure to the dangers incident to the business in which he was engaged, and that he was duly warned of the danger by his fellow servants and by the agents of the defendant. It also answered that on a named day, and for a named consideration, the plaintiff had released the defendant from all liability on account of his injury. The evidence on most of the points in issue was more or less conflicting, but was sufficient to support a verdict for the plaintiff. The jury found for the plaintiff $900 damages, and the defendant made a motion for a new trial, which was overruled. To the overruling of its motion and to the refusal of the court below to grant a nonsuit the defendant excepted.

1. One ground of exception is that the court below erred in overruling the motion of the defendant for a nonsuit. The evidence for the plaintiff showed that on the day that he was injured he was put to work in a tunnel by one Monahan, who was a foreman of the defendant company, hiring its hands directing them about their work, and exercising a general control over the affairs of the company at that place. It appeared that the plaintiff was without experience as a miner, having worked in a mine on but one occasion previously to the night when he was hurt. Monahan instructed him and others who were put to work with him not to "surface" or "trim up" the tunnel, but to give their entire attention to driving it ahead, stating that other employés would do the trimming. At the time when the plaintiff and the men with him began work, the tunnel had been driven in a distance variously estimated at from 12 to 20 feet from the point where the last brace or support had been erected, and for that distance there were no supports to the roof or sides of the tunnel to prevent it from caving in. It had been surfaced or trimmed up to the point where the men began work. It looked smooth both on the sides and overhead, and there was nothing in its appearance to indicate danger to one not experienced in such work. From the time that the men began work to the time that the injury to the plaintiff took place the tunnel was driven two feet further in, and, in accordance with Monahan's instructions, this last two feet was not surfaced. The plaintiff testified that there were no cracks or crevices to indicate to him that there was any danger, but that "it was just as smooth as could be." He further testified that no one at any time gave him any instructions as to how to work in the mine so as to protect himself, or warned him that there was any danger of the tunnel falling in. He was not instructed as to putting up timbers as supports, and no timbers were furnished him for that purpose. There was also evidence for the plaintiff of an expert who had examined the tunnel in question and the character of the earth through which it was driven to the effect that the clay at that point was not of such a character as to indicate the danger of its caving in to one not experienced in mining. This witness also testified that when a tunnel was being driven through clay of the character indicated it was necessary to the safety of the men working therein that the roof of the tunnel should be supported by overhead timbers; that these timbers "ought to be kept as close as every ten feet up to the face of the tunnel," and that where such was not done the conditions were very dangerous. The foregoing is a substantial statement of the facts shown by the evidence for the plaintiff on the question as to how he was injured. The declaration...