Warrior-Pratt Coal Co. v. Shereda

• Decision Date: 24 April 1913
• Citation: 62 So. 721,183 Ala. 118
• Parties: WARRIOR-PRATT COAL CO. v. SHEREDA.
• Court: Alabama Supreme Court

62 So. 721

183 Ala. 118

WARRIOR-PRATT COAL CO. v. SHEREDA.

Supreme Court of Alabama

April 24, 1913

On Rehearing, June 5, 1913

Sayre J., dissenting in part.

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by Peter Shereda against the Warrior-Pratt Coal Company, for damages for injury while in its employment. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sayre J., dissenting in part.

Count 2 alleges the operation by defendant of a coal mine, and that plaintiff was in the employment of defendant in said mine and while engaged in the discharge of his duties under his employment a piece of rock or slate or other hard substance fell from the roof of defendant's mine, striking plaintiff and inflicting the injuries which are set out. It is then averred that the injuries were caused by reason of a defect in the condition of the ways, works, machinery, or plant of the defendant, and that said defect consisted in this, that defendant failed to pull down what is known as a middleman from said roof, and because thereof said middleman fell upon plaintiff, inflicting the injuries complained of and plaintiff avers that said defect arose from or had not been discovered or remedied owing to the negligence of the defendant, or of some person intrusted by it with the duty of seeing that its ways, works, machinery, or plant were in proper condition.

Count 4 alleges the condition of the material composing the roof of defendant's mine opposite room No. 10, near first right crossheading, at the place where plaintiff was injured, was not sufficiently sustained and held in place, and because thereof a portion of such material composing such roof fell upon plaintiff and injured him.

The exception to oral charge quoted in assignment 24 is as follows: "If you find from all the evidence that the rock fell by reason of a defect in the roof of the entry, and the superintendent, Lillich, who was also the mine boss, at the time as testified to, and several days prior thereto, knew of the defect or dangerous condition of the rock, and the defendant failed to remedy the defect, or put the rock in a safe condition, and if you further believe from the evidence that plaintiff was not such employé or servant whose duty it was to remedy such defect under the evidence before you, then you should find for the plaintiff, notwithstanding the rock broke off several inches within the neck of the room wherein it was the duty of the plaintiff to see to the safety of the roof."

The testimony of plaintiff was that he was working in the room, digging coal for himself, being paid by the ton, and making over $3 and up to $4 per day. The superintendent testified that he gave the plaintiff the contract to drive room 10 on the first right cross. "I made the usual contract with him and marked it off. Plaintiff was paid 42 1/2cents per ton for the coal." It was attempted to be shown by this witness what was the nature and character of the contract, but on objection the evidence was excluded.

J.T. Stokely and R.H. Scrivner, both of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

McCLELLAN J.

The complaint, as amended, contained four counts. All of these carried the material averment of relation of master and servant between plaintiff (appellee) and defendant (appellant) at the time plaintiff was injured by the falling of rock from the roof of the mine. Only counts 2 and 4 were passed to the jury. These were drawn under the first subdivision of the Employers' Liability Act (Code 1907, § 3910). Neither of these counts was subject to the demurrer. Both sufficiently, under our rule, allege and describe a defect in the condition of the ways, works, etc., of the defendant's mine, and conclude in the words of the statute whereby negligence is charged, as upon that defective condition, to have proximately caused plaintiff's injury.

We are not able to find in this record any evidence, or legitimate inference from the evidence, tending to support the allegations of relationship of master and servant between plaintiff and defendant when he was injured. The application to the evidence here, of the accepted and often reaffirmed doctrine of Harris v. McNamara, 97 Ala. 181, 12 So 103, and Lookout M.I. Co. v. Lea, 144 Ala. 169, 39 So. 1017, defining an independent contractor, leaves no doubt that the relation, in employment, alleged did not exist when the injury occurred. The sum of that evidence is that plaintiff engaged to mine coal in defendant's mine, at a stated rate per ton, at a place and within the limits fixed by defendant's superintendent. It is not shown, in any degree, that defendant or its representatives had any control or direction in respect of the details of the mining, of when or how plaintiff should do that he had engaged, as stated, to do. There is no presumption that he was a servant rather than a contractor. The burden was assumed by and was upon him to show that he bore at the time the relation of servant, in order to avail of the statute's provisions. He has not shown that defendant h...