Woodward Iron Co. v. Lewis

• Decision Date: 02 February 1911
• Parties: WOODWARD IRON CO. v. LEWIS.
• Court: Alabama Supreme Court

54 So. 566

171 Ala. 233

WOODWARD IRON CO. v. LEWIS.

Supreme Court of Alabama

February 2, 1911

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by H. B. Lewis, administrator, against the Woodward Iron Company. Judgment for plaintiff, and the defendant appeals. Reversed and remanded.

Count 3 is as follows: "Plaintiff, H. B. Lewis, as administrator of the estate of James Thomas Lewis, deceased, claims of the defendant, the Woodward Iron Company, $20,000 as damages, for that heretofore, on, to wit, the 10th day of December, 1908 plaintiff's intestate, James Thomas Lewis, a minor under the age of 14 years, was in the employment of the defendant in a certain coal mine at or near Dolomite, Jefferson county Alabama, and while coming up the slope of said mine from his place of work therein he was run upon by a certain car or cars, and so mashed and mangled and injured that he died, to plaintiff's damage in the sum aforesaid. Plaintiff avers that the said intestate's death was caused, and he sustained said injury, by reason and as a proximate consequence of the negligence of a person in the service and employment of the defendant, who then and there had the charge or control of said car, and the electric motor by which the said car was being run upon a railway in said mine while acting within the line and scope of his employment, to wit, one Till Snow."

The demurrers to said counts are as follows: "Said count fails to set up facts sufficient to show that it is within the influence of subdivision 5 of the employer's liability act [Code 1907, § 3910]. (2) The count does not state that said railway was a railroad within the meaning of the employer's liability act. (3) It fails to allege that plaintiff's intestate was a railroad employé of defendant. (4) It fails to allege that defendant was operating a railroad for hire, within the meaning of said act. (5) It fails to allege whether the track was a switch or a main line. (6) It is common knowledge that mine owners do not construct railways, such as are contemplated in the act inside their mines, and said count fails to present a cause of action against the defendant."

Cabaniss & Bowie, for appellant.

Stallings & Drennen, for appellee.

MAYFIELD J.

This action is under the employer's liability act, to recover damages for the wrongful death of a servant, who was a minor not quite 14 years of age. Intestate was employed by defendant to work in its coal mine. He was employed to throw switches for the passage of cars upon a tram track in the mine. He was killed by one of the cars becoming derailed and striking or passing over him. He had been employed in the mine for about 2 1/2 years before the accident, and had been at this particular work of throwing switches for about 2 months prior to his death. He was therefore to some extent familiar with the mine and with the track and with the cars which injured him.

The first error insisted upon is in overruling defendant's demurrer to the third count of the complaint.

The reporter will set out this count, and the demurrer thereto, in his report of the case.

We do not think that the count was subject to any of the grounds of demurrer interposed. The count was good under the fifth subdivision of the employer's liability act. It alleged the relation of master and servant between defendant and intestate, and between defendant and the alleged negligent servant; and sufficiently showed that intestate and the alleged negligent servant were fellow servants. It also sufficiently alleged that the injury was caused by reason of the negligence of this alleged negligent servant, who was in the service of the master, and who had charge or control of an electric motor car or train upon a railway. In fact, it sufficiently alleged all the requisites of the statute to state a cause of action under the fifth subdivision of the statute in question, and therefore was not subject to the demurrer.

The count was sufficient under the rules announced in Griffin's Case, 149 Ala. 423, 42 So. 1034, in Curl's Case, 153 Ala. 215, 44 So. 969, and in Pear's Case, 156 Ala. 263, 47 So. 110.

Nor is it defective in the respect pointed out in Whatley's Case, 122 Ala. 118, 26 So. 124, and in Mobley's Case, 139 Ala. 434, 36 So. 181.

The court erred, however, in sustaining the demurrer to plea No. 9, as amended. The plea was amended as follows: "(9) That, at the time of the injury to plaintiff's said intestate, there was in force a rule in said mine promulgated by defendant prohibiting plaintiff's said intestate and other latch boys employed in said mine from riding the trips of cars on the slope of said mine, which was known to plaintiff's said intestate, and plaintiff's said intestate in violation of said rule left his place of work in said mine and rode a trip of cars a short distance up said slope and got off said trip while it was in motion in front of a trip of cars coming down said slope, and was struck and injured as a proximate result thereof. Plaintiff's said intestate, knowing, at the time that he violated said rule as aforesaid, that it was dangerous for him to do so, and knowing at the time that it was dangerous for him to get off said trip in the way that he did, and that he was liable or likely to be struck by a trip of cars coming down said slope, and as a proximate consequence of said act on his part he was struck and injured as aforesaid."

If the matters set forth in this plea were true (and on demurrer they must be so treated), they constituted a perfect defense to each of the counts of the complaint upon which the trial was had.

This plea was sufficient, notwithstanding the complaint alleged that intestate was a minor under 14 years of age.

The rule set up shows itself to be reasonable. The plea averred that the rule was promulgated, that it was applicable to intestate, that he knew the rule, and that he violated it, that he knew that it was dangerous to violate the rule in the manner in which he is alleged to have so done, and that his injury or death was the proximate result of his having so violated the rule of his master. This is all the law or rules of good pleading require the plea to set up.

It is inconceivable how the master could be liable, under the complaint as for simple negligence, if the matters set up in that plea were true. The plea met all the conditions necessary to a good plea, on account of the minority of the intestate; that is, that the rule was reasonable, that it applied to him, that he knew it and appreciated the danger of violating it, and that with such knowledge and appreciation he violated it, and was injured in consequence thereof.

It is not only the right of the master to adopt and promulgate reasonable rules for the conduct of his business, but the law makes it his duty so to do, so far as is reasonably necessary and proper to subserve the safety of his servants in the discharge of their duties. Mr. Labatt says: "One of the main purposes of a rule being [is] to place servants in possession of certain information which they are not in a position to acquire by their own unaided observation," etc. Master & Servant, vol. 1, § 212.

It is likewise the duty, as well as the right, of the master to inform the servant of the rule, in order that it may both bind the servant and conserve his safety. It is also the law that a servant who violates a reasonable rule of the master, which is at the time known to the servant, and which is promulgated for his guidance and protection, is guilty of contributory negligence. Labatt, Master and Servant, vol. 1, §§ 225, 365.

While it is true that the duty of the master to warn the servant of dangers is stricter in cases where the servant is a minor than where he is an adult, and that a warning which is sufficient for an adult may not be sufficient for a minor, and while the necessity and duty to warn do depend also upon the age, experience, and intelligence of the particular minor to be warned, yet this plea alleges that the minor was warned by the rule, that he knew the rule, and appreciated the danger attending its violation, and, notwithstanding this, he violated the rule and was injured in consequence thereof. This was sufficient, though the intestate was a minor under 14 years of age at the time of the injury.

If, as contended by the plaintiff, intestate was not of sufficient age, understanding, and experience to know or comprehend the rule, or to appreciate the danger of violating it, these were made triable issues under the plea. If the rule was habitually violated by the servants (with the knowledge of the master), and to such an extent as to abrogate or nullify it (as is contended), this was a subject for an appropriate replication; it was not the office of the plea to negative these facts.

The difficult question--the important one--in this case, is whether or not the tramway used by defendant in its ore mine, as shown by the undisputed evidence, is a railway, within the meaning of the fifth subdivision of the employer's liability act. It was a tramway laid in the slope of the mine, upon which tram cars were run for the purpose of transporting ore from the bottom of the slope or mine to the top or to the tipple where the cars were dumped. The cars were operated by means of electric motors, and the tracks had switches by means of which the cars were passed from one track to another. The duty of the intestate was to throw the switches or latches, so that the cars could pass from one track to another. The negligent servant, as denominated in the third count, had the control or management of an electric motor which moved the cars upon the track.

The complaint, or the third count thereof, did not allege that the electric motor was on a tramway,...