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

• Decision Date: 30 November 1916
• Docket Number: 6 Div. 327
• Citation: 198 Ala. 346,73 So. 516
• Court: Alabama Supreme Court
• Parties: TENNESSEE COAL, IRON & R. CO. v. WIGGINS.

73 So. 516

198 Ala. 346

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

6 Div. 327

Supreme Court of Alabama

November 30, 1916

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by James Wiggins against the Tennessee Coal, Iron & Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Percy Benners & Burr, of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

THOMAS J.

The case was tried on counts 3 and 11, which counts were respectively, under subdivisions 1 and 3 of the Employers' Liability Act (Code 1907, § 3910). The defendant pleaded the general issue and contributory negligence.

The accident occurred in connection with the operation of a coal-cutting machine in a mine. This machine was an electrically driven device, which makes an incision in the seam of coal, three or four inches wide at the bottom and running across the width of the room. A blast is put in at the top of such seam, the result being that when the blast is set off the coal is blown out, because of the incision cut. The bar or arm of this cutting machine on which the saws, teeth, or bits, which cut the coal, run, moves laterally as the cutting proceeds. The machine is held in place during its operation by a wire cable which runs from it to an iron rod or pole. This rod or pole is sharpened at both ends, and one end is inserted in the roof and the other end in the floor of the mine. Notches are made in the roof and in the floor of the mine, to hold this pole in place. To operate the machine in cutting the coal, two men are required. One, known as the machine runner, operates the levers which control the electric power driving the machine, and determines the movements of the machine while in operation. The other man is known as the helper to this operator. This helper sets up and holds said iron rod or pole from which runs the wire cable to the machine, and he is subject to the orders of the operator or machine runner. This iron rod or pole, the use of which is above described, is called a "jack pole" or "jack pipe." The coal-cutting machine weighs about 5,000 pounds, and, while cutting the coal, runs its bits or teeth or saws at the rate of about 800 feet per minute, and subjects the jack pole and the wire cable to a strain of "something like 4,000 pounds," which strain is on the wire cable and the bottom of the jack pole.

In the instant case, the machine runner or operator was named Barrett, and his helper was the plaintiff. No other person was present when the injury occurred. On that occasion, the machine had been brought into the room for its operation therein; and the plaintiff's testimony is to the effect that Barrett stated that the room was not sufficiently cleared of coal for the operation of the machine therein; that Barrett called a third party, to whom he made complaint that the room was not properly cleared of coal, and said that he (Barrett) "had a mind not to cut the place, but that he would do it."

Plaintiff's testimony tends further to show that, on the occasion of his injury, he was subject to the orders of the operator, Barrett, who told him where to place the jack pole; that he so placed it, and the operator started the machine, and began to "pull the machine to the face [of the coal], and before he got to the face--against the face--he put the bits into the machine"; and that Barrett told plaintiff to hold the jack pole, which witness tried to do as so directed, by putting all his weight against it; that, about the time the machine (the teeth or bits) began to grip the coal, the jack pole which plaintiff was holding began to slip at the bottom; that Barrett ordered him to hold it, while it was slipping, and Barrett kept running the machine; that the pressure on the cable jerked the jack pole through or on the floor of the mine and knocked the plaintiff into the machine, and the cable caught his foot and jerked it into the teeth or bits of the machine, which cut his foot as indicated. Plaintiff further testified that, so far as he could see, Barrett made no effort to stop the machine after plaintiff fell and before he was injured; that Barrett had charged of the machine and its operation; and that plaintiff as his helper was "entirely under his directions." Plaintiff's testimony as to the condition of the wire cable extending from the jack pole to the coal-cutting machine, which cable held the machine against the face of the coal, was that it was pretty badly worn from use, and that it had broken strands of wire in it.

The evidence for the defendant tends to show that with a pressure of about 4,000 pounds on the cable and jack pole, while the machine is in operation, the usual life of the wire cable is about three weeks; that the cable in question was a new one and was put in only two days before, that it was not worn from use, and that there were no broken strands of wire thereon; and that on the occasion of the injury of plaintiff the jack pole did not jerk out at the bottom, or floor, and fall, but was still standing in place at the time of, and immediately after, the accident.

The trial court sent up to this court for inspection the photographs of such machine in operation. The office of the jack pole, to which is attached the wire cable extending to the machine, is clearly indicated by these photographs. This jack pole and wire cable were parts of the plant of the defendant. Sloss-Sheffield Co. v. Mobley, 139 Ala. 425, 36 So. 181; Huyck v. McNerney, 163 Ala. 244, 50 So. 926; Roden Coal Co. v. Ravarono, 186 Ala. 200, 65 So. 334; Riddle v. Bessemer Soil Pipe Co., 170 Ala. 559, 54 So. 525.

In Epsey v. Cahaba Coal Company, 186 Ala. 160, 64 So. 753, this court said:

"We have ruled that 'wear' of a part of an instrumentality is some evidence of the existence of a defect in condition of such long standing as to support a finding of such want of due care and diligence, either in discovering the defect in condition or in remedying it, as amounts to negligence." A.G.S.R. R. Co. v. Yount, 165 Ala. 537,

543, 51 So. 737; B.R.M. Co. v. Rockhold, 143 Ala. 115, 126, 42 So. 96.

On the evidence before us, it cannot be affirmed, as a matter of law, that this cable was not worn, and that a proper inspection of it would not have disclosed its defective condition. It cannot be affirmed as a matter of law that there was no evidence that Barrett, who had the control and operation of the machine for defendant (and to whose orders plaintiff was subject), had not sufficient time and opportunity to discover by proper inspection any defective condition that may have existed in this cable. The evidence was sufficient to carry the case to the jury. Roden Coal Co. v. Ravarono, supra; Epsey v. Cahaba Coal Co., supra; Amerson v. Corona Coal Co., 69 So. 601; Tobler v. Pioneer Co., 166 Ala. 517, 52 So. 86; T.C. I. & R.R. Co. v. Stevens, 115 Ala. 461, 22 So. 80; B.R.M. Co. v. Rockhold, supra; Riddle v. Bessemer Soil Pipe Co., supra.

The eleventh count is under the third subdivision of the Employers' Liability Act, and, after describing how the machine was used and operated, this count proceeds with the further averment:

"That while he was then and there engaged in the discharge of the duties of the said employment he was attempting to hold in position said jack pole, which then and there jerked loose from its fastenings while said machine was in operation, and the plaintiff was thereby jerked and thrown or caused to fall against the cutting part of said electrical coal-cutting machine, and a large part of his foot was then and there cut off by the machine, and as a proximate result of said injury he has suffered," etc. (specifically describing his injuries). "And the plaintiff says that his said injury and damage are the proximate result of the negligence of one Riley Barrett, whose name to the plaintiff is otherwise unknown, who was then and there in the service or employment of the defendant, and to whose orders or directions the plaintiff at the time of his said injuries was bound to conform and did conform, and such injuries resulted from his having so conformed.

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