Southern Coal & Coke Co. v. Swinney

• Decision Date: 15 January 1907
• Citation: 42 So. 808,149 Ala. 405
• Parties: SOUTHERN COAL & COKE CO. v. SWINNEY.
• Court: Alabama Supreme Court

42 So. 808

149 Ala. 405

SOUTHERN COAL & COKE CO. v. SWINNEY.

Supreme Court of Alabama

January 15, 1907

Appeal from Circuit Court, Shelby County; John Pelham, Judge.

Action by J. E. Swinney, by next friend, against the Southern Coal &amp Coke Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This was an action for damages for personal injuries to an employé while engaged in the business of the employer, mining coal. The third count is drawn under subdivision 1 of the employer's liability act, and the negligence charged is that a switch in the track upon which said car was running at the time of derailment, at or near the point of said derailment, was defective, so as to cause said car to be derailed as aforesaid. Demurrers were interposed to this count, and overruled; but it is not necessary here to set them out, as they are not noticed in the opinion.

The defendant interposed several pleas of contributory negligence, the first of which is No. 4, and counts upon the negligence of the plaintiff, who, being engaged as a miner to dig coal in No. 5 west turnout, in defendant's mine quitted his place at which he had been assigned to work, and negligently proceeded out of the mine along the main haulage road therein, and was struck by a train of cars which accidentally jumped the track. Plea 5 counts on the negligence of the plaintiff in quitting the place he had been assigned to work, and proceeding out of the mine along the main haulage way before the time when the miners usually left the mine, and at a time when they were not reasonably expected by those operating the tram cars to pass along that way. Plea 6 counts on the negligence of plaintiff in quitting his place of work and leaving the mine by the main haulage way. It alleges that along said haulage way the defendant had dug or caused to be dug dog holes, into which persons entered so as to let the cars pass, and that plaintiff at the time of the accident negligently failed to place himself in one of these dog holes, and in consequence was struck by the string of cars. Plea 7 counts on plaintiff's negligence in quitting his place of duty, and alleges that he went out along the main haulage way, and, meeting the superintendent of the mine at the mouth of No. 2 west turnout, he placed himself in the center of a track leading from the main haulage way into No. 2 west turnout, and negligently loitered there, instead of proceeding out of the mine or returning to his duty. Plea 8 alleges negligence on the part of the plaintiff, in that he quit his place of work, and proceeded out of the mine as far as No. 2 west turnout, where he met the superintendent, and where he stopped and took his seat in the center of a side track leading from No. 2 west turnout to the main haulage way, where a trip of cars on the main track coming down into the mine jumped the track about 40 feet away from him, and the plaintiff negligently remained sitting on the track until he was struck by the derailed cars. Plea 9 is the same as 8, except that it alleges that plaintiff negligently failed to get out of the way of the trip of cars. Plea 10 is practically the same as plea 8, and alleges that plaintiff negligently remained sitting or loitering about three or four minutes, when, if he had proceeded on his journey out of the mine, he would have had time to have switched off into any of the dog holes provided along the main haulage way. Pleas 11 and 12 are not set out.

The evidence on which the plaintiff relied to support his case under the third count is sufficiently stated in the opinion as is the evidence relating to contributory negligence.

At the conclusion of the evidence, the defendant requested the following written charges, which were refused: "(4) I charge the jury that, if you believe the evidence in this case, the plaintiff at the time the accident happened was not acting within the line of his duty, and that the defendant in that event owed him no duty other than the duty not to injure him wantonly, intentionally, or recklessly. (5) If the jury find from the evidence that the plaintiff was employed by the defendant to dig coal in No. 5 west turnout in its mines at Glen Carbon, and that he had quit his place of work and proceeded out of the mine along the main haulage way before the miners were accustomed to leave the mine, and got as far as No. 2 west turnout, and there stopped and engaged in conversation for ten minutes, more or less, with the defendant's mine foreman, then during the time he stopped at said place he was a mere volunteer, performing service for and on his own behalf, and not on behalf of the defendant and your verdict must be for the defendant. (6) The court charges the jury that there was no evidence in this case of any defect of the ways, works, and machinery of the defendant at the time of the accident to the plaintiff, and you must not presume anything. (7) I charge the jury that under the evidence in this case the plaintiff's injuries were due to an accident for which the defendant is not responsible and there can be no recovery. (8) I charge the jury that if, from the evidence, you believe that the defendant had provided dog holes or safety places for the use of the miners along the main haulage way in its mines, and that the plaintiff, instead of taking one of such dog holes for safety places when he heard the trip of cars coming down the track, took a more dangerous place by standing in No. 2 west turnout, near the main line of defendant's track, he then assumed the risk incident to the derailment of the defendant's cars on its track. (9) I charge the jury that if the plaintiff, when he proceeded out of the defendant's mine at an unusual hour, when there was apparent danger and risk incident to walking along the main haulage way of the defendant's mine, thereby electing voluntarily to encounter them, and was injured by a train of cars coming down the defendant's track while standing in a position in close proximity thereto, then I charge the jury that he cannot for such accident maintain an action against the defendant. (10) If the jury find from the evidence that the plaintiff was employed by the defendant to dig coal in No. 5 west turnout in its mines, and that he quit his work and proceeded out of the mine at an unusual hour to that in which the miners were accustomed to go out of the mine, and that he proceeded out of the mine along the main haulage way along which trains of cars were being operated, and if you further find that along this haulage way the defendant had provided dog holes or safety ways for the men to stand so that the cars might pass, and if you further find that the plaintiff, instead of going into one of these safety places when he heard the trip of cars coming down the track, remained in No. 2 west turnout, where there were side tracks leading to the main line, a place obviously more dangerous, then I charge you that he contributed to his own injury, and your verdict must be for the defendant. (11) If the jury believe from the evidence that the plaintiff was employed by the defendant to dig coal in No. 5 west turnout in its mines, and that he quit his place of work and proceeded out of the defendant's mine at an unusual hour for the miners thereof so to do, and if you find from the evidence that there was an escape way provided for the miners in said mine, which could have been used by the plaintiff, which was a safer way for him to have gone out at than the main haulage way, and if you find that he elected to take the main haulage way out of the mine, then you must find for the defendant. (12) I charge that if you believe, from the evidence, that the safe place for the plaintiff to have stood as the defendant's train of cars passed by him in its mine, but the plaintiff stood at another and more dangerous place when he could have stood elsewhere along the main haulage way of the defendant's mine, and if you believe that his standing in a more dangerous place contributed to his injury, your verdict must be for the defendant."

The plaintiff requested the court to give the following written charges, to the giving of which the defendant excepted "(1) It is not required of plaintiff that he should have acted with unusual and more than ordinary prudence, either in going out of the mine or in taking care of his own safety. (2) To make the plaintiff guilty of negligence, the jury must be reasonably satisfied from the evidence that he did something which a reasonably prudent man, acting with reasonable prudence, would not have done under the same circumstances, or that he failed to do something which a reasonably prudent man, acting with reasonable prudence, would have done under the same circumstances. (3) While the jury cannot guess or surmise, the jury are entitled to draw all reasonable inferences from the facts in evidence. (4) In determining whether or not the switch was defective, the jury have the right to weigh all the evidence in the light of their common knowledge, common sense, and common experience. (5) In order to recover a verdict, it is not necessary that the plaintiff prove that he suffered all the damages claimed in the third count. (6) A servant ordinarily has the right to rely on the master having exercised due care to have the ways, works, machinery, or plant in a reasonably safe condition. (7) If the jury find for the plaintiff, they have no right to withhold from the amount of their verdict a single dollar to which, under the evidence and charge of the court, the...