Wolf v. Smith

• Citation: 42 So. 824,149 Ala. 457
• Parties: WOLF v. SMITH.
• Decision Date: 20 December 1906
• Court: Supreme Court of Alabama

42 So. 824

149 Ala. 457

WOLF v. SMITH.

Supreme Court of Alabama

December 20, 1906

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by D. C. Wolf against R. D. Smith. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This was an action for damages. The complaint contains five counts, the first of which is in the following language "Plaintiff claims of the defendant $20,000 damages, in this: That on and prior to the 3d day of February, 1904, the defendant was engaged in operating Bradford Mines, in Jefferson county, Alabama; that on the date aforesaid plaintiff was in the employment of the defendant, and while in a discharge of his duties, under his employment, a stick of dynamite or other explosive exploded in his hand, so badly injuring him that one eye was put out, both of his hands had to be amputated, and his hearing was impaired; that he has suffered great mental agony and physical pain; that he has paid and has obligated himself to pay large sums of money for medicine, medical and surgical attention, and nursing; that he has lost his earning power; that he was confined to his bed for a long space of time; that he was rendered sick sore, and lame; that he is permanently injured and disabled. And plaintiff avers that his said injuries were proximately caused by the negligence of the defendant in failing to provide him with a reasonably safe place in which to do his work under his employment. Wherefore he sues and claims damages as aforesaid." It is unnecessary to set out the second count, or the motions and demurrers filed thereto, as the record fails to disclose intelligently the action of the trial court thereon. Count 3: "Plaintiff claims of the defendant $20,000 damages, in this: That on the 3d day of February, 1904, defendant was operating a coal mine, called 'Bradford Mines,' in Jefferson county, Alabama; that plaintiff was working in said mine as an employé of the defendant, and while at work therein was injured and damaged as is more particularly set out in the first count of this complaint. And plaintiff avers that it was the duty of the defendant, while operating said mine, to provide a stretcher properly constructed, and woolen and water-proof blankets in good condition, for use in carrying away any person that might be injured while at work in said mine. Plaintiff avers that the defendant negligently and wholly failed to provide such stretcher and blankets, and because thereof, when plaintiff was injured as aforesaid, which was in the nighttime, and the weather was very cold, on account of the failure of defendant to provide such stretcher and blanket he was compelled to walk a long ways on foot through the mud, and he was compelled to wade through cold water; that plaintiff was at the time wet, and that his injuries were greatly aggravated, and his suffering greatly increased, both mentally and physically, on account of the failure of defendant to provide such stretchers and blankets. And plaintiff further avers that it was the duty of the defendant to keep at the store which was at said mine linseed or olive oil, bandages, and linen for use in emergencies. And plaintiff avers that defendant negligently failed to keep said linseed oil or olive oil, bandages, and linen at said store, and because thereof plaintiff's injuries were greatly aggravated; that by reason thereof his wounds could not be bandaged or oil applied to the same until long afterwards, and after he had been removed a long distance therefrom, and his injuries and suffering were proximately greatly increased thereby." It is unnecessary to set out the other counts.

The following demurrers were interposed to the first count, and sustained: "(1) It does not state facts sufficient to constitute a cause of action against the defendant. (2) No act of negligence is averred or set out. (3) Negligence is averred merely as a conclusion of the pleader. (4) The count fails to allege or show in what respect said place was not reasonably safe for the plaintiff to do his work in." The same grounds of demurrer were interposed to the third count as to the first count. These demurrers were also sustained.

Frank S. White & Sons, for appellant.

Weatherly & Stokely, for appellee.

DENSON J.

This action sounds in damages for a personal injury suffered by the plaintiff while in the employment of the defendant. The first count of the complaint is framed with respect to the common-law liability of the master, and ascribes the injury to the negligence of the master in failing to provide a reasonably safe place for plaintiff to do the work he was employed to do. It is true a complaint in suits of this character must show sufficient causal connection between the act complained of and the injury. While the averments of the complaint are general, yet, under the numerous adjudications of this court in respect to the sufficiency of such averments, we are of the opinion that the count shows with sufficient certainty causal connection between the injury and the cause averred, and the demurrer to the first count should have been overruled.

A demurrer to the second count was sustained, but the judgment entry shows that on motion of the defendant certain parts of the count were stricken out, without showing the parts that were stricken. The motion to strike does not appear in the record, and we have no way of determining what parts of the count were stricken, nor whether the count as it appears in the complaint, as shown by the record, is the same that it was when the court ruled on the demurrer. The only demurrer to the count bears date of filing August 16, 1904, the motion to strike was granted the 3d day of November, 1905, and the granting of it precedes the ruling on the demurrer to the count. This state of uncertainty appearing on the face of the record, it would be purely conjectural for this court to say that the count as it stands in the record is the same that it was when the court ruled on the demurrer to it. So we must decline to consider the ruling of the court on the demurrer to the second count.

Obviously count 3, as amended, is based on section 2917 of the Code of 1896, which is in this language: "It shall be the duty of the operator, agent or superintendent of each mine to keep at the mouth of the mine, or at any other such place about the mine as shall be designated by the chief mine inspector a stretcher, properly constructed, and a woolen and waterproof blanket in good condition for use in carrying away any person who may be injured at the mines: Provided, that where more than two hundred men are employed, two stretchers and two woolen and waterproof blankets shall be kept in mines generating fire damp. A sufficient quantity of linseed or olive oil, bandages and linen shall be kept in store at the mines for use in emergencies and bandages shall be kept all the time." Manifestly the statute imposes the duty of keeping the articles and emollients mentioned for the benefit of those persons in the...