Tutwiler Coal, Coke & Iron Co. v. Farrington

Citation39 So. 898,144 Ala. 157
PartiesTUTWILER COAL, COKE & IRON CO. v. FARRINGTON.
Decision Date30 November 1905
CourtAlabama Supreme Court

On Rehearing, Jan. 9, 1906.

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

"To be officially reported."

Action by J. W. Farrington against the Tutwiler Coal, Coke & Iron Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action for damages caused by the falling in of the roof of one of defendant's mines, injuring plaintiff. There were several counts in the complaint, but all were eliminated except the fourth count, as amended, and the sixth count.

The fourth count was as follows: "The plaintiff claims of the defendant $15,000 as damages, for that, during the month of October, 1903, and for many months prior thereto, the defendant was operating and working coal mines in Jefferson county, Ala., and in the operation of said mines there were rooms and passageways, over and above which there were roofs formed of rock, slate, shale, or other material duing the said months of October, 1903, and the plaintiff was in the service of defendant, mining coal in slope No. 4, at or near Murray, Ala., and in going to the prosecution of plaintiff's work it was necessary for plaintiff to be under one of said roofs, and while under one of said roofs (going to his work), where he had a right to be as one of defendant's servants or employes, a piece of roof covering the point where plaintiff was fell upon plaintiff and broke one of his legs, and otherwise injured plaintiff about the body and limbs, by reason of which he suffered great physical and mental pain, etc.; and plaintiff avers that his said injuries were caused by reason of a defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the defendant, the said defect consisting of this: that said portion of said roof, which was a part of the ways, works, and machinery, or plant, connected with or used in the business of the defendant, was cracked, or had not sufficient strength or cohesive power to hold itself up or to be selfsupporting, and was not properly supported by props or pillars or other safe means of holding the same up, or to keep it from falling, as it was necessary for it to be to keep it from falling, and said part of said roof fell as a proximate consequence of said defect, and caused said injuries as aforesaid; and plaintiff avers that said defect arose from, or had not been discovered or remedied owing to, the negligence of the defendant's bank boss, one Durie, whose Christian name to plaintiff is unknown, and who was in the service of the defendant and intrusted by the defendant with the duty of seeing that the ways, works, machinery and plant of defendant were in proper condition."

Sixth count: "Plaintiff adopts all the words of the fourth count down to and including the words 'and mental pain etc.,' and adds the following: And plaintiff avers that his said injuries were caused by reason of the defect in said roof at the point where the plaintiff was, and had a right to be, as hereinabove stated, said defect consisting of this That said portion of roof which fell was not properly supported by props or pillars or other safe means of holding the same up, or to keep it from falling, as it was necessary for it to be supported to make it safe (said portion of said roof not having sufficient cohesive power to hold itself up), and said part of said roof fell by reason of not being properly supported, and proximately caused plaintiff's injuries, as hereinabove stated. And the plaintiff avers that the defendant was under a duty to the plaintiff as one of its employés to see that said roof over the point where plaintiff had to pass to and from his work was in a reasonably safe condition; but the defendant negligently failed to keep said roof in a reasonably safe condition, and as a proximate consequence of said negligence the said injuries were caused, as hereinabove set out."

There were demurrers to the fourth count: (1) There are no facts averred which showed that there existed at said time any defects in the ways, works, machinery, or plant of the defendant. (2) The allegation that part of said roof was not properly supported does not allege a defect in the condition of the ways, works, machinery, or plant of defendant. (3) The allegation that the roof fell in from being not properly supported is a mere conclusion of the pleader. (4) It does not appear that the negligence averred proximately caused plaintiff's injury. (5) The defendant did not owe plaintiff the measure of duty set forth in said count. (6) It does not appear with sufficient certainty that plaintiff received his injury while engaged in the service or employment of defendant. (7) No facts are averred which show with sufficient certainty that it was defendant's duty to prop said roof at said place." The same demurrers were interposed to the sixth count, with these additional grounds: "(a) The averments therein are but the conclusion of the pleader. (b) The measure of duty alleged therein is not the legal measure of duty owed to the defendant. (c) It does not appear that the roof which fell was not reasonably supported by props or pillars or other safe means of holding it up. (d) For aught that appears therefrom said roof was so supported as to make it reasonably safe. (e) It is not stated with sufficient certainty wherein or how the defendant negligently failed to keep said roof in a reasonably safe condition." These demurrers were overruled.

There were several pleas; one the general issue, and the others were contributory negligence. The third plea was as follows: "And for further plea and answer thereto the defendant says that the plaintiff himself was guilty of negligence which proximately contributed to his said alleged injuries, and that his said alleged negligence consisted of this: That plaintiff was aware that said roof was not propped or supported by props or pillars, as in said complaint alleged, and notwithstanding said knowledge plaintiff negligently remained in the service or employment of the defendant for an unreasonable length of time in the use of said roof, whereby and as a proximate consequence of which plaintiff received his said alleged injuries by a part of said roof falling on him." Demurrers were assigned to the third plea as follows. "(1) It is not shown in said plea that the plaintiff knew of the danger from the failure of the roof to be properly propped or supported. (2) Because it is not shown in said plea either that the danger was obvious or that plaintiff knew of the danger attending the nonpropping or nonsupporting of the roof. (3) It is not alleged that plaintiff did anything in a negligent or improper manner." These demurrers were sustained.

The following charges were refused to defendant: "(1) If the jury believe the evidence, they cannot find for the plaintiff under the fourth count. (2) If the jury believe the evidence they cannot find for the plaintiff under the sixth count of the complaint. (3) If the defendant maintained its entries, and undertook to keep them safe by pulling down loose and dangerous rock, rather than by propping or otherwise supporting said rock, and if such method was the safe and more practical method of keeping the entries safe, then I charge you that the plaintiff cannot recover. * * * (6) If the jury believe, from the evidence, that the safer and better and more practical method of keeping the roof of the entry safe was to pull down loose and dangerous rock than to prop it, then I charge you that the plaintiff cannot recover. (7) If the plaintiff knew that the defendant did not prop or otherwise support dangerous material in the roof of its entries, and knew and appreciated the danger of its failure to do so for a month or more prior to the accident, plaintiff should not recover, if his injuries were sustained as a proximate result of defendant's failure to prop or otherwise support such material. (8) If the plaintiff knew that defendant's mine was not usually inspected by sounding the roof, and had so known for several months prior to his accident, then he assumed the risk of any injury resulting proximately from a failure to inspect in such manner. (9) If the defendant did not use props or other supports in its entries to support loose or dangerous rock, and the plaintiff knew that it did not, and had known it for a long time, then I charge you that the plaintiff cannot recover. (10) If the plaintiff knew that defendant did not prop or otherwise support such material as fell on the plaintiff, and had known for several months that it did not do...

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