Whatley v. Zenida Coal Co.

• Decision Date: 30 May 1899
• Parties: WHATLEY v. ZENIDA COAL CO.
• Court: Alabama Supreme Court

26 So. 124

122 Ala. 118

WHATLEY v. ZENIDA COAL CO.

Supreme Court of Alabama

May 30, 1899

Appeal from circuit court, Shelby county; George E. Brewer, Judge.

Action by Tyre W. Whatley, administrator of the estate of Thomas J Whatley, deceased, against the Zenida Coal Company. There was a judgment for defendant, and plaintiff appeals. Reversed.

The complaint, as amended, contained six counts. The first count was as follows: "The plaintiff, as such administrator claims of the defendant the sum of ten thousand dollars as damages, for that whereas, on August 22, 1893, the defendant Zenida Coal Company a corporation, was engaged in owning and operating a coal mine near Helena, in said state and county that in operating said mines the coal was drawn up out of said mines by means of tram cars drawn up a steep incline on a tramway by a chain attached to said cars, and wound around a drum at the top near the entrance; that at the time of the grievance hereinafter named plaintiff's intestate, Thomas J. Whatley, was in the employment of the defendant in the capacity of engineer to run the pump engine, which was situated down in said mines; that the only means of ingress and egress to and from his said work was up and down along or on said tramway; that on said August 22, 1893, while plaintiff's intestate was engaged in his said employment in said mines, he started to leave said mines, in the regular course of his employment, by going up said incline by the side of said tramway, when three tram cars loaded with coal which were being pulled up said tramway ahead of him by means of said chain and drum, broke loose or became detached from said chain, and ran back down the steep incline with great velocity, and ran off the track and against a prop placed there to support the roof, and knocked said prop against said decedent's head, so injuring him that he died therefrom in a few hours,-all of which was caused by reason of defects in the condition of the ways, works, machinery, or plant connected with or used in said business of defendant, which said defects arose from, and had not been discovered or remedied owing to, the negligence of defendant, or some person in the service of defendant, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition; to the damage of plaintiff ten thousand dollars, wherefore he brings this suit." The prefatory allegations in each of the other counts of the complaint were the same as those contained in the first count. The allegations of negligence in each of the other counts, respectively, were as follows: Second count "All of which was caused by reason of defects in the condition of the ways, works, machinery, or plant connected with or used in said business of defendant, to wit, the coupling pin coupling the tram cars to the chain was defective, improperly constructed, and short, thereby causing it to jolt out, and the cars to be detached from said chain, and be precipitated down said incline; which said defects arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or some person in the service of defendant, and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition; to the damage of the plaintiff ten thousand dollars, wherefore he brings this suit." Third count: "All of which was caused by reason of defects in the condition of the ways, works, machinery, or plant connected with or used in said business of defendant, to wit, the said tramway was defective, improperly constructed, out of line, and rough, thereby causing said cars to run off the track as they came back down the incline, which said defects arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of the defendant, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition; to the damage of the plaintiff ten thousand dollars, wherefore he brings this suit." Fourth count: "All of which was caused by reason of defects in the condition of the ways, works, machinery, or plant connected with or used in said business of defendant, to wit, no manway was provided by the defendant to afford ingress and egress to decedent to and from his work, wherefore he was compelled to travel on or along said tramway, which said defect arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of the defendant, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition; to the damage of the plaintiff ten thousand dollars, wherefore he brings this suit." Fifth count: "Said injury was caused by the negligence of the engineer of the defendant, who was running the engine which was drawing said cars up said incline, which said negligence consisted in running said engine in a negligent, reckless, and careless manner, by reason of which the said cars were jolted and jerked, by reason of which jerking and jolting the coupling pin was jolted out, allowing the cars to become detached, and escape down said incline, and said cars ran against a prop, and knocked it against plaintiff's intestate, whereby he was killed." Sixth count: "Said injury was caused by reason of said defendant's negligently having in its employment an unskillful and incompetent engineer to run the engine which was pulling said cars, and that said engineer was running said engine at the time plaintiff's intestate was killed, and run it in so reckless, unskillful, and negligent a manner as to cause the cars to become detached from the chain, whereby they were precipitated down said slope or incline, and ran against a prop, knocking it against plaintiff's intestate,wherebyreby he was killed." To the first count the plaintiff demurred upon the following grounds: (1) Said count does not specifically set out or describe any defect. (2) There is no averment as to how the alleged defect arose. (3) There is no specific averment of negligence on the part of the defendant. (4) There is no averment that the defendant, or any of its employés, knew of the defects alleged to have caused the injury. To the second count the defendant demurred upon the following grounds: (1) It is not alleged in said count in what the defect in the coupling pin consisted, or how the coupling pin was improperly constructed. (2) It is not alleged that the defendant knew of the alleged defect. (3) It is not alleged whether or not plaintiff's intestate knew of said alleged defect. (4) No specific negligence on the part of the defendant is alleged. (5) It is not alleged that sufficient time had lapsed, after the alleged defect in the coupling pin was made known, for the defendant to have the same remedied. To the third count the defendant demurred upon the following grounds: (1) Said count does not aver in what the alleged defect in the tramway consisted, nor in what the improper construction of said tramway consisted. (2) There is no averment that the defendant knew of the alleged defect...