Whitmore v. Alabama Consol. Coal & Iron Co.

• Decision Date: 16 December 1909
• Citation: 164 Ala. 125,51 So. 397
• Parties: WHITMORE v. ALABAMA CONSOL. COAL & IRON CO.
• Court: Alabama Supreme Court

51 So. 397

164 Ala. 125

WHITMORE v. ALABAMA CONSOL. COAL & IRON CO.

Supreme Court of Alabama

December 16, 1909

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by George Whitmore, as administrator, against the Alabama Consolidated Coal & Iron Company, for damages for the death of his intestate. Judgment for defendant, and plaintiff appeals. Affirmed.

The complaint was as follows: (1) "Plaintiff claims of defendant the sum of $25,000 damages, to wit, that on and prior to the 5th day of July, 1908, the defendant was engaged in operating an iron mine in Gadsden, Etowah county, Ala and that on and before the date aforesaid plaintiff's intestate was in the employment of defendant, and while in the discharge of his duties under his employment a stick of dynamite, dynamite caps, or other explosive exploded, so badly injuring him that on the next day he died as the result of said injury. And plaintiff avers that said injuries and death of plaintiff's intestate were proximately caused by the negligence of defendant in failing to provide him with a reasonably safe place in which to do his work under his employment." (2) Same as 1, down to and including the words "negligence of defendant," and adding "In placing or allowing dynamite, dynamite caps, or other explosive to be and remain in such close proximity to plaintiff's intestate's place at which he was at work under his employment as to render the same unsafe in which to do his work." (3) Same as 1, down to and including the words "proximately caused," and adds: "By reason of defect in the condition of the ways, works machinery, or plant connected with or used in the said business of defendant, which said defect arose from," etc., according to the usual form. (4) Same as 1, except that it is alleged that intestate was at work in said mine by invitation, and the defendant failed to provide a safe place to work, etc., under such invitation. (5) Same as 1. except that negligence is alleged in failing to provide at the mouth of the mine a stretcher properly constructed, a woolen and waterproof blanket, and a failure to keep at the store of said mine, linseed oil, or olive oil, bandages, and linen. (6) Same as 5, except that the failure to keep blankets and stretchers is not alleged. (7) Same as 5, except that the negligence is alleged in a failure to keep bandages at the mine. (8) Alleges a failure to keep oil and bandages and linen at said store, and by reason thereof the wounds could not be bandaged and oil applied thereto until some time afterwards, and after the intestate had been moved a long distance, whereby his injuries were approximately greatly increased. (9) Same as 8.

George D. Motley and W. H. Standifer, for appellant.

Hood &amp Murphree, for appellee.

ANDERSON J.

Count 3 of the complaint failed to specify the defect in the ways, works, or plant, and was subject to the demurrer which was sustained to same. Whatley v. Geniga Coal Co., 122 Ala. 127, 26 So. 124. The case of Jackson Co. v. Cunningham, 141 Ala. 206, 37 So. 445, is not in conflict with the present holding. There the court construed the complaint as charging a defect in the track, and which specified or designated the ways, works, or plant. Here there is no attempt to specify or designate.

Counts 5, 6, 7, 8, and 9 evidently attempted to state a cause of action under section 1019 of the Code of 1907, for a failure to supply oil, bandages, etc. The mine described in the case at bar is an iron mine, and not a coal mine; but conceding without deciding, that chapter 30 does not apply exclusively to coal mines, section 1019 is intended for the protection of employés engaged at a mine, and not persons who are not so employed. Wolf v. Smith, 149 Ala. 457, 42...