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

• Decision Date: 17 December 1908
• Citation: 158 Ala. 519,47 So. 1029
• Parties: TENNESSEE COAL, IRON & R. CO. v. BURGESS.
• Court: Alabama Supreme Court

47 So. 1029

158 Ala. 519

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

Supreme Court of Alabama

December 17, 1908

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by John Burgess against the Tennessee Coal, Iron & Railroad Company for damages for personal injuries received by the falling of a roof of a mine. There was judgment for plaintiff in the sum of $1,500, and defendant appeals. Affirmed.

The facts, as well as the action of the trial court on the pleadings, are sufficiently set out in the opinion. The following charges were refused to defendant: (1) "I charge you that, if the portion of defendant's mine in which plaintiff was injured was in the exclusive possession of Kennedy & Hamilton, you must find for the defendant." (4) "If the jury believe from the evidence that Kennedy & Hamilton were independent contractors, they must find for defendant." (5) "If the jury believe from the evidence that at the time plaintiff must have worked in defendant's mine that the roof of the same was secure they must find for defendant." (6) "If the jury believe from the evidence that plaintiff was injured in the forty-seventh heading, and that the entire control of getting out the ore from said heading was, under the contract between the defendant and Kennedy & Hamilton, left to Kennedy &amp Hamilton, they must find for defendant."

Percy &amp Benners, for appellant.

Bowman Harsh & Beddow, for appellee.

DENSON J.

All of the counts of the complaint, except the fourth and fifth, were eliminated; the trial court sustaining demurrers thereto. At the request of the defendant, in writing, the court gave, in respect to the fifth count, the general affirmative charge in its favor; so that it is not only unnecessary, but would be inappropriate here, to consider assignments of error based upon the judgment of the court overruling demurrers to the fifth count, and sustaining demurrers to pleas addressed to that count, notwithstanding these assignments are insisted upon in brief of appellant's counsel.

It is argued in the brief of appellant's counsel that the court erred in overruling the demurrer to the fourth count of the complaint. That ruling is not embraced in the assignment of errors; so we pass the argument by without consideration. H. A. & B. R. R. Co. v. Miller, 120 Ala. 537, 24 So. 955; Smith's Case, 130 Ala. 95, 30 So. 432.

The fourth count shows that the defendant was operating an ore mine in Jefferson county, and that the plaintiff was injured by "a part of the roof or top of said mine" falling upon plaintiff, while he was in said mine by invitation of the defendant, and there engaged--not, however, as a servant or employé--in the business of the defendant. In this count plaintiff's injuries are ascribed to the negligence of the defendant, in that it failed to use due care in or about making said roof safe and secure from falling, as it was its duty to do. To this count the defendant pleaded the general issue and three special pleas. Pleas 2 and 3 set up assumption of risk as a defense; plea 2 being in this language: "Plaintiff knew of the defect in the mine of which he complains, and of the danger arising therefrom, and with such knowledge remained in said mine." The correctness of the court's ruling, sustaining the demurrer to this plea, is obvious. For aught that appears on the face of the plea, the plaintiff may have acquired the knowledge alleged only a moment before the roof fell, and not in time to save himself by even a hasty retreat.

Plea 4 was held bad on demurrer. It alleges as a defense that: "Plaintiff came into defendant's mine and entered a portion thereof, the operation of which defendant had let under contract to one Hamilton. Plaintiff was an employé of said Hamilton, and the defect in the mine of which plaintiff complains arose and was caused by the operation of said portion of said mine by said Hamilton after plaintiff was invited to enter the mine. Plaintiff was injured in said portion of said mine operated by said Hamilton. Wherefore defendant says it is not liable to plaintiff." The plea does not aver that the defect was caused by negligence on the part of Hamilton, nor does it show that defendant had parted with the control of the part of the mine operated by Hamilton, nor that Hamilton was not operating it for the benefit of the defendant. All the allegations of the plea may be true, and the mine may have been operated by Hamilton for defendant's benefit (as the proof shows it was); and the defendant, so far as the plea shows, may have owed the duty to plaintiff, as alleged in the complaint, to keep the roof of the mine in a reasonably safe condition, and the defendant may also have been guilty of the alleged negligence. On these considerations the court holds the plea bad, and subject to the demurrer thereto sustained. Furthermore, the court is of the opinion that, if the matters alleged in the plea show a good defense to the fourth count, they might have been shown under the plea of the general issue, one of the pleas upon which the trial was had.

The defendant owned and operated Fossil Mine, in Jefferson county. It made a contract with Kennedy & Hamilton, a partnership, to "work out" what was known as "heading No. 47," in said mine, at $25 a running yard for getting out the ore. The plaintiff was employed by Kennedy & Hamilton to work as a "mucker" in said mine at $2.25 a day, and he was so at work in said mine on October 3, 1905, when he received the injuries complained of. He was loading a car, at the time he was hurt, about 12 or 15 feet from the face of the heading. The cause of his leaving the face of the...