West Pratt Coal Co. v. Andrews

Decision Date19 December 1906
Citation150 Ala. 368,43 So. 348
PartiesWEST PRATT COAL CO. v. ANDREWS.
CourtAlabama Supreme Court

Rehearing Denied March 2, 1907.

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Action by Richard D. Andrews against the West Pratt Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The character of the action, the complaint, and the demurrers thereto are fully set out in the opinion. A number of pleas were filed, but it is unnecessary to set out any here but the eleventh and seventeenth, which are as follows: (11) "That the condition of the bridge or trestle was open to ordinary observation, and plaintiff continued to work thereon until he was hurt, and thereby assumed the risk." (17) "For further answer, defendant says that plaintiff was guilty of negligence, which contributed proximately to his injuries, in this: that the plaintiff was at work on a high trestle, to wit, about forty feet high, and it was his duty by reason of his position, to exercise ordinary care and diligence to discover any defective or dangerous condition of the trestle on which he was at work; and defendant says that plaintiff, by the exercise of his duties, could have discovered the defective condition of the trestle which caused his injuries." Demurrers were interposed to the eleventh plea as follows: "It does not follow as a matter of law from the facts stated therein that plaintiff assumed the risk. It is not averred or shown that plaintiff had knowledge of the defect. It is not shown to be the duty of plaintiff to discover or remedy the defect. It is not averred or shown that the danger arising from the alleged defect was open to ordinary observation, or was known to plaintiff." And demurrers to the seventeenth plea as follows: "Said plea fails to aver or show any facts which justify the conclusion of the pleader that plaintiff was guilty of negligence. It does not appear that defendant put upon plaintiff, or that plaintiff assumed, the duty of exercising care to discover any defective or dangerous position of the trestle; but the pleader concludes such duty by reason of plaintiff's position on the trestle, and such conclusion does not follow from the premises of the pleader. It is not shown that plaintiff did or omitted to do anything which it was his duty not to do or omit." The facts sufficiently appear in the opinion.

The court, at the request of the plaintiff, gave the following charges: (6) "There is no evidence in this case to show that the defendant put the duty of inspection of the trestle on the plaintiff, Richard D. Andrews." (8) "There is no evidence in this case that any one ever told plaintiff Andrews, that a cap of the trestle was broken." The court refused to give the following charges, which were requested by the defendant: (4) "I charge you that you cannot give the plaintiff a verdict on account of any defect in the original construction of the trestle." (5) "It was the duty of the plaintiff to use reasonable care in examining the surroundings, and take such knowledge of dangers as could be attained by examination. In performing his duties he was bound to take notice of the ordinary operation of familiar laws and to govern himself accordingly and if he failed to do so the risk was his own. He was bound to use his eyes, and see that it was apparent to any person using his eyes, and, if the defect was obvious and suggestive of danger, knowledge on the part of the plaintiff will be presumed." (6) "It was the duty of the plaintiff to exercise reasonable care to ascertain and know the dangers that existed in and about his work."

The trial resulted in judgment for the plaintiff, and his damages were assessed in the sum of $4,250.

Tillman, Grub, Bradley & Morrow and Bankhead & Bankhead, for appellant.

Bowman, Harsh & Beddow and W. C. Davis, for appellee.

DENSON J.

The defendant (appellant) was engaged in operating a coal mine in Walker county. A part of its ways consisted of a trestle which led from the mouth of the mine to the tipple. Tram cars loaded with coal were run over the trestle from the mine to the tipple, where the coal was loaded from the trams to the railroad cars. The main trestle was about 1,400 feet long, but the part of it which was the side track was, according to the estimates of different witnesses, from 90 to 200 feet long. The loaded cars were run from the mine to the tipple on the main trestle, and, when unloaded, would be shifted to the side track, and, after being chained together, would be returned to the mine for reloading. The plaintiff (appellee) was in the employment of the defendant as a "handler" of the tram cars, and when they were unloaded at the tipple it was his duty to shift them to the side track and chain them together, to be returned to the mine. On the 26th of April, 1905, the plaintiff was engaged in the performance of his duties as such employé, and while standing between two of the empty trams on the trestle it fell, precipitating him to the ground, some 40 feet below. He was injured by the fall, and brought this suit to recover damages for the injury. The cause was tried on the seventh count of the complaint, the sufficiency of which was tested by demurrer. The action of the trial court in overruling the demurrer is presented for review by one of the grounds in the assignment of errors.

This count is framed in respect to subdivision 1 of section 1749 of the Code of 1896, which provides for the liability of the master to the servant when the servant receives a personal injury in the service or business of the master, "caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the master or employer." The count is in this language: "Plaintiff claims of defendant $10,000 as damages, for that heretofore, on, to wit, the 26th day of April, 1905, defendant was engaged in the business of mining and loading coal on cars, and in connection with said business used a trestle at or near Dora, in Walker county, Alabama; that on said day, while plaintiff was in the service or employment of defendant and engaged in or about said business of defendant on said trestle, said trestle or part thereof gave way or fell, and plaintiff was thrown or caused to fall a great distance, and suffered the injury or damages set out in the first count of this complaint in this cause. Plaintiff alleges that said trestle gave way or fell as aforesaid, and plaintiff suffered the said injuries and damages, by reason and as a proximate consequence of defect in the condition of the ways, works, machinery, or plant used in or connected with the said business of defendant, which defect arose from, or had not been discovered or remedied owing to the negligence of, defendant, or of some person in the employ of defendant, and intrusted by defendant with the duty of seeing that said ways, works, machinery, or plant were in proper condition, viz., said trestle was defective." The point of the demurrer assigned to the count is that it fails to aver in what the defect consisted, and what part of the trestle, or of defendant's ways, works, machinery, or plant, was defective, with sufficient certainty. The case of L. & N. R. R. Co. v. Jones, 130 Ala. 456, 30 So. 586, is relied on by the appellant as supporting its contention that the demurrer was improperly overruled. A study of that case will demonstrate that it is easily distinguishable from the case at bar. There the defect averred was that "the appliances used by defendant in or about attempting to get said car upon said rail were not proper and sufficient for that purpose." The averment was insufficient; and no better reason for holding it insufficient can be given than that assigned by Sharpe, J., in the opinion in that case. Many appliances may have been used, and the pleader made no attempt to designate or particularize the appliance or appliances. Here the trestle is designated as the one in use by defendant at or near Dora, and the averment that the "trestle was defective" cannot by any contortion of language be referred to any other than that particular trestle.

The argument and contention of the appellant is that the evidence showed the trestle was 1,400 feet long, and 30 or 40 feet high, and that the general averment that a trestle of that magnitude was defective, without stating in what part the defect existed, is not definite enough. So far as the averments of the count go, the dimensions of the trestle are not revealed, and resort to the evidence cannot be had in determining the sufficiency of the pleading. Another case relied on by appellant is that of Whatley v. Zenida Coal Co., 122 Ala. 118, 26 So. 124. In respect to that case counsel for appellant assert in their brief that the complaint to which demurrer was sustained was more definite than the one under consideration. In this counsel are mistaken. The only count passed on--the first--simply averred generally that the injury was caused "by reason of defects in the condition of the ways, works, machinery, or plant." So that case cannot be authority here. In the case of A. G. S. R. R. Co. v. Davis, 119 Ala. 572 24 So. 862, counts (seventh and ninth) were held good which averred that the injury was caused by some defect in the track used by the defendant. This seems to be as indefinite, if not a more indefinite, averment than the one under consideration. We think it not necessary that the count should specify the particular part of the trestle that was defective, nor that the place should be more definitely stated than it is in the count. Our conclusion, therefore, is that the court properly overruled the demurrer. Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 So. 445; Sloss-Sheffield...

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