Tennessee Coal, Iron & R. Co. v. Moore

• Decision Date: 03 June 1915
• Docket Number: 88
• Parties: TENNESSEE COAL, IRON & R. CO. v. MOORE.
• Court: Alabama Supreme Court

69 So. 540

194 Ala. 134

TENNESSEE COAL, IRON & R. CO. v. MOORE.

No. 88

Supreme Court of Alabama

June 3, 1915

Rehearing Denied June 30, 1915

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by D.A. Moore against the Tennessee Coal, Iron & Railroad Company. Demurrer to second count of complaint overruled, and defendant appeals. Affirmed.

Percy Benners & Burr, of Birmingham, for appellant.

Leader & Ewing and Beddow & Oberdorfer, all of Birmingham, for appellee.

THOMAS J.

This case comes up solely on the record. The error assigned is the action of the trial court in overruling the demurrer to the second count of the complaint. This count is as follows:

"Plaintiff claims of the defendant $2,999 as damages for this: That heretofore, on, to wit, September 3, 1913 defendant was engaged in the operation of a coal mine at Belle Sumter, Alabama, and on said date plaintiff was in the service or employment of the defendant in the following capacity, to wit, as a coal miner, and while engaged in the discharge of his duties as such employé a large quantity of dirt and rock fell upon or against the plaintiff, knocking him down, injuring him internally, badly injuring his face and head, knocking out his teeth, injuring his eyes, was made sick and sore, was rendered for a long time unable to work and earn money, to wit, two months, and was permanently injured, and was put to much expense for medicine and medical services in his treatment of said injuries, to wit, $25; and the plaintiff avers that his said wounds and injuries suffering, and loss of time was the proximate consequence and caused by reason of the negligence of a certain person, to wit, Mr. Flynn, whose name is otherwise unknown to plaintiff, who was in the service or employment of defendant, and who had superintendence intrusted to him, while in the exercise of such superintendence, and said negligence consisted in this, viz.: Said Flynn negligently permitted the top or roof of said mine to be defective or to be improperly supported, where plaintiff was working, or negligently permitted plaintiff to work in a dangerous part of said mine, where rock was liable to fail on plaintiff, without warning or notifying plaintiff of such danger."

Appellant insists in argument that demurrer should have been sustained to this count because:

"It does not appear that defendant has violated any duty which it owed plaintiff;" that "it does not appear that the superintendent charged with negligence was as a matter of law guilty of negligence;" and that "it appears as a matter of law that there was no such duty on defendant as that alleged."

In Robinson Mining Company v. Tolbert, 132 Ala. 462, 31 So. 519, the averment of negligence questioned by demurrer was that plaintiff--

"received said injuries and suffered said damage as aforesaid, by reason and as a proximate consequence of the negligence of a person, to wit, one Frierson, in the service or employment of defendant, and intrusted by defendant with superintendence, whilst in the exercise of such superintendence, to wit, said person negligently failed to warn or notify plaintiff of the presence of a large quantity of a high explosive, at or near the place where plaintiff was at work as aforesaid, though there was present, at or near the said place at which plaintiff was at work, a large quantity of a high explosive which exploded as aforesaid."

It was there held that the plaintiff was not required to allege that Frierson knew of the presence of the high explosive, and that it was sufficient to allege the negligence of the defendant, and to "prove that defendant knew, or was in a position *** to know, of the presence of the high explosive at or near the place of the injury." The justice writing the opinion said:

" 'It is presumed the master, or the person placed in charge of a hazardous business or department thereof, is familiar with the dangers, latent or patent, ordinarily accompanying the business he had in charge.' It is his duty to inform the servant of latent dangers, of which he has knowledge, or of which he is presumed to know, of which the servant has no knowledge, and where no knowledge can be imputed to him, and also of obvious dangers, which the servant is not presumed to appreciate or understand. 'He should inform him of the particular perils and dangers of the service.'

The sufficiency of the complaint in Tolbert's Case was again discussed, and held free from the demurrer, in Republic Iron & Steel Co. v. Williams, 168 Ala. 612, 53 So. 76, and in Little Cahaba Coal Co. v. Gilbert, 178 Ala. 515, 524, 59 So. 445. The count held sufficient in Little Cahaba Coal Company v. Gilbert, supra, concluded with the words:

"Plaintiff avers that said part of said roof or top fell upon or against him, as aforesaid, and he suffered said injuries and damage by reason and as a proximate consequence of the negligence of a person in the service or employment of defendant, who had superintendence intrusted to him, whilst in the exercise of such superintendence, viz., one McGinnis in the exercise of such superintendence, negligently caused or allowed said part of said roof or top to fall upon or against plaintiff on the said occasion."

The Chief Justice, writing the opinion in that case, reviewed Robinson Mining Company v. Tolbert, supra, and stated that the count was not subject to the ground of demurrer that it failed to--

"show a duty on the part of the defendant or its superintendent to secure the roof from falling on plaintiff, and a breach of that duty, or that said superintendent had knowledge of the probable danger of the roof's falling on plaintiff, or that he could have

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