Stith Coal Co. v. Sanford

• Decision Date: 13 May 1915
• Docket Number: 53
• Parties: STITH COAL CO. v. SANFORD.
• Court: Alabama Supreme Court

68 So. 990

192 Ala. 601

STITH COAL CO. v. SANFORD.

No. 53

Supreme Court of Alabama

May 13, 1915

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

Action by Dave Sanford against the Stith Coal Company. There was a Judgment for plaintiff, and defendant appealed to the Court of Appeals and it transferred the cause under Laws 1911, p 450, § 6. Reversed and remanded.

Stokeley Scrivner & Dominick, of Birmingham, and Bankhead & Bankhead of Jasper, for appellant.

Ray &amp Cooner, of Jasper, for appellee.

GARDNER J.

Suit by employé against the employer for damages arising out of an injury received while digging coal in the employer's mine. The employé was at work in a "room" in the mine, which was his working place, when a rock fell upon him from the roof, resulting in the injuries of which he complains. The case was tried upon count 6 of the complaint, the general issue, and special pleas of contributory negligence Nos. 3, 4, and 7, resulting in a judgment for the plaintiff, from which this appeal is prosecuted.

The sixth count, after adopting that portion of count 2 which alleged the relationship of master and servant and that the plaintiff was engaged in the discharge of his duties under such employment at the time of the injury, and how the said injury occurred, then proceeds to allege in substance that the plaintiff gave notice of a demand or request to the person whose duty it was to deliver or have delivered certain props or timbers needed in the mines, and that it was the duty of the defendant to promptly deliver the said props, and that this duty was breached by it, in that it failed to deliver or have delivered said props, and as the proximate consequence thereof plaintiff was injured.

It is thus seen that this count of the complaint rested for recovery upon the breach of the statutory duty set out in section 38 of an act entitled "An act to regulate the mining of coal in Alabama," approved April 18, 1911. Said section reads as follows:

"Sec. 38. It shall be the duty of persons operating coal mines in this state to keep at a convenient place at or near the main entrance of the mine, or in the mines, a sufficient supply of props and other timbers useful for propping therein, of suitable lengths and sizes, for those working in such mines. It shall be the duty of those working in said mines who need props or other timbers to select and mark the same when needed for propping by them, designating on such props or timbers the place at which the same are to be delivered or give notice to the person whose duty it is to deliver or have the same delivered, of the number and kind of props or other timbers needed and of the place at which they are to be delivered. It shall then be the duty of the operator to promptly deliver or cause to be delivered such props or other timbers at the place designated." Acts 1911, p. 500.

No question is here presented as to whose duty it was to prop the roof of the mine in the room where the plaintiff was at work (Tutwiler C. & C. Co. v. Farrington, 144 Ala. 157, 39 So. 898; Mascott Coal Co. v. Garrett, 156 Ala. 290, 47 So. 149), as that question is foreclosed by the plaintiff himself, who testified that it was his "duty to prop the roof when it was to be propped, and the company's duty to furnish the timbers."

Testimony for the plaintiff tended to show that he requested that the company furnish him with props to be used at that place, and that defendant failed to do so, and therefore violated its statutory duty, and as the proximate consequence thereof the rock fell from the roof resulting in his injury.

There was also proof tending to show that the coal in that room, where the rock fell, was three feet and five inches high. It was the contention of the defendant that it furnished plaintiff with props three feet four inches, three feet six, and three feet eight and ten inches, and that in this particular place a prop three feet four inches, as well as one three feet six inches, was suitable and proper to be used; the height of the coal being three feet five inches.

It was further insisted by defendant that it was customary and proper in all well-regulated mines to use with the props what is known as a "cap board." Indeed, this seems not to be controverted, as the following quotation from the testimony of the plaintiff discloses:

"A cap board is an instrument in general use in the mines, used for the purpose of propping. Cap boards have been used in all mines where I have worked. It is a board from four to five inches wide and about twelve inches long and about one inch thick. When a prop is an inch short, you can use that other inch by putting in a cap board. A man needs a cap board under a prop when he uses it; that is the way to set it up. If the coal is four feet five inches, you can prop it with a prop four feet four inches an a cap board one inch."

The defendant did not have timbers cut three feet five inches, or other odd-number inches; but the insistence was they had furnished props three feet four inches, as well as three feet six inches, which were entirely proper to be used in propping the roof of the mine where the height of the coal was, as previously stated, three feet five inches. There was evidence to show that it was proper to use cap boards over all props, as testified to by the plaintiff himself. There was also evidence tending to show that a prop three feet six inches was suitable and was used in well-regulated mines for propping purposes where the height of the coal was three feet five inches, as here, the same being done by digging an inch or more in the floor of the mine and in using a "cap" on the prop where it touches the roof.

The defendant offered to show that the props so furnished were entirely suitable, and such as were used in all well regulated mines. Objection to such testimony was sustained by the court, and the same question was presented by various objections sustained, as well as charges refused. The defendant insisted that such proof was offered not only in support of his defense of contributory negligence, but also to show that by furnishing such props it had substantially complied with its statutory duty and with the request of the plaintiff, and that there was no breach or violation of such statutory duty as was the proximate cause of the injury.

On the other hand, it seems to have been the insistence of counsel for the plaintiff that, as the testimony for the plaintiff tended to show that he had demanded props three feet five inches in length, therefore the testimony of the defendant to the effect that it had furnished props three feet four, and three feet six inches in length, was not competent for the reason that it would not be in compliance with the statute and, as stated in the grounds of objection, "was in violation of the terms of the statute"; that, the plaintiff having demanded props three feet five inches, it was necessary, to comply with the statute, that the defendant furnish props of the exact length and dimensions so demanded; and that proof that it had furnished props entirely suitable for the purpose needed was incompetent.

Counsel for plaintiff argue that the above-quoted statute is...