Stewart v. Sloss-Sheffield Steel & Iron Co.

• Decision Date: 30 November 1910
• Citation: 170 Ala. 544,54 So. 48
• Court: Alabama Supreme Court
• Parties: STEWART v. SLOSS-SHEFFIELD STEEL & IRON CO.

54 So. 48

170 Ala. 544

STEWART v. SLOSS-SHEFFIELD STEEL & IRON CO.

Supreme Court of Alabama

November 30, 1910

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Wade Stewart against the Sloss-Sheffield Steel & Iron Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The negligence alleged in the first count is a failure to provide plaintiff with a safe place in which to do his work under said employment, in that the roof of the mine where said rock fell was not sufficiently propped up or sustained. The second count alleges the negligence to be a failure of defendant to use due care in or about making said roof safe or secure from falling, as it was its duty to do. The second plea was contributory negligence, in that the part of the roof which fell and injured plaintiff was not propped or supported by timbers, and the plaintiff knew that it was not properly supported by timbers, and that it would likely fall and injure him by reason of its not being properly secured, yet notwithstanding, plaintiff negligently remained at work knowing that he would likely or probably receive great personal injuries by reason of the said roof not being propped or supported by timber, and as a proximate consequence received the said injury. The third plea was contributory negligence, in that plaintiff went under a part of the roof, which fell on him, when the same was not supported by the timber, and he knew it was not supported by the timber, and, by reason of said timber not supporting the roof, would fall and cause him great personal injury, as a proximate consequence of which he received said injuries. The fourth plea was assumption of risk, in that plaintiff went under that part of the roof, which fell and injured him as alleged, when the said part of the said roof was not supported by timbers, when plaintiff knew that said part of said roof was not supported by timbers, and that it was likely to fall because thereof, and inflict great personal injury on plaintiff, yet with full knowledge of the danger he voluntarily encountered it, and assumed the risk of the part of said roof falling and injuring him. The fifth plea was assumption of risk, based on the same statement contained in plea 3.

Matthews & Matthews, for appellant.

Tillman Bradley & Morrow and M. M. Baldwin, for appellee.

SIMPSON J.

This is an action by the appellant against the appellee, for personal injuries received by the plaintiff, as an employé of the defendant, while working in a coal mine of defendant, caused by the falling of the roof of the mine on plaintiff.

There was no error in overruling the demurrer to the second plea. Merriweather v. Sayre Mining & Manuf'g Co., 161 Ala. 441, 445, 446, 453, 49 So. 916 (pleas 2 and 8); New Connellsville Coal & Coke Co. v. Kilgore, 162 Ala. 642 50 So. 205, 209 (plea 5).

On the same authorities, there was no error in overruling the demurrers to the third, fourth, and fifth pleas.

There was no error in sustaining the objection to the question to the witness Goodloe Robinson, "Were the timbers in this mine, at the point where the rock fell and injured plaintiff sufficiently close together to make the roof reasonably safe?" While the witness stated that he was a contractor, and had been working in an ore mine eight or nine years, yet his evidence shows that his work was in getting out coal, and not in constructing the roofs, etc., of the mine. It is also true that, at the time this question was asked, there had been no proof as to how this roof was constructed, nor how close the timbers were together, and the witness did not state how close they were together, nor how close they should be, nor that he knew how close they were together. Birmingham Railway & Elec. Co. v. Baylor, 101 Ala. 489, 498, 13 So. 793. In the case of McNamara v. Logan, 100 Ala. 187, 196-197, 14 So. 175, 178, the witness was shown to be "perfectly familiar with the business in all of its details, including the driving or construction of cross-entries, their width," etc., "the necessity of the driver to take a position between the cars and the wall of the entry, * * * and the correlative necessity for sufficient space for this work to be done"; and he specially deposed that he was "acquainted with the general construction of cross-entries, and that the rule was to have the space referred to about three feet in width." Consequently he was allowed to testify as to whether it was safe to have this space as narrow as a foot, or a foot and a half. In the case of Birmingham Furnace & Manufacturing Co. v. Gross, 97 Ala. 221, 230, 12 So. 36, the question as to whether some men can stand more gas than others was a matter of common knowledge to which any one could testify, and while the court might, for that reason, have excluded the testimony, yet it could not be placed in error for allowing it. Besides, the witness, who had been in the business four or five years, had had opportunities for observing that fact. In the case now under consideration, the question whether the props were sufficiently close together to be reasonably safe was for the jury to consider, and the witness should have been required to state...