Woodward Iron Co. v. Wade

• Decision Date: 22 April 1915
• Docket Number: 923
• Citation: 68 So. 1008,192 Ala. 651
• Parties: WOODWARD IRON CO. v. WADE.
• Court: Alabama Supreme Court

68 So. 1008

192 Ala. 651

WOODWARD IRON CO. v. WADE.

No. 923

Supreme Court of Alabama

April 22, 1915

Rehearing Denied June 3, 1915

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by John Wade against the Woodward Iron Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The complaint is framed under subdivision 3 of the Employers' Liability Act, and alleges that plaintiff was injured, while working for defendant in its coal mine, by rock and coal falling upon him, which was proximately due to the negligence of defendant's superintendent, one Henderson, in ordering plaintiff to put the entry in which he was working on center. Besides the general issue, defendant filed several pleas setting up the contributory negligence of plaintiff in that he negligently removed a prop or timber which supported a rock in the roof of said mine, which he knew, or could have known by the exercise of ordinary observation, was likely or liable to fall upon him. Demurrers to these several pleas were overruled, except as to plea 4.

The evidence shows the following facts (without dispute except as noted): Plaintiff was an old and experienced miner at the time he was hurt, having worked in the mines, shooting coal and driving headings, for 12 or 13 years. He contracted with defendant's bank boss, Henderson, to drive a certain heading from the main entry, for which he was paid by the year for the rock and coal removed. He hired his own help and did the work in his own way, except that he was responsible to the company for doing the work according to the rules and regulations of the mine. The heading was 7 feet high and 9 feet wide, and the coal was removed for a width of 20 feet and the brushing thereby made was 3 1/2 to 4 feet in height with a rock slab for its roof. Plaintiff testified:

"I put those props in there, and it was my duty. The props were put in to hold the slabs. *** If the props had not been placed there, the rock would have fallen down, if it had been broken anywhere, and it was necessary to put the props in for safety. The bank boss told me to put the props in. He did not tell me at every point where to put the props. I used my own judgment about that."

After driving the entry for about 200 feet, it was discovered that it had gotten off center about 3 or 4 feet. Henderson told plaintiff, two or three days before the accident, to put the track on centers; that it would have to be there. It was plaintiff's undertaking and duty to keep to the centers as furnished by the engineers, and the evidence was in dispute as to whether he was at fault in losing them.

After some argument as to extra pay, plaintiff undertook to carry out Henderson's requisition to get the heading and track on the centers, and this involved a carrying out a section of the track and shooting down the rock above the brushing just above several of the props, and the taking out of the prop before shooting the roof. Plaintiff testified that the removal of these props was absolutely necessary, and that Henderson made these conditions; that it was Henderson's duty, as foreman, to inspect all places where people worked and, if anything was wrong, to notify them, and, if everything was all right, to tell them; that, when he went to work on this occasion, he asked Henderson how this place of work was, and Henderson said it was all right. Plaintiff gave the following account of what occurred after he had moved a section of track in his undertaking to put it on center:

"Before I took out the job, I took my ax and sounded the top. It sounded good all the way across. It didn t give any evidence of any crack; nothing to indicate that that rock would fall. I don t know of anything else I could have done to ascertain whether that rock was safe, not in particular and I don t know in general, unless I had got up there with my lights and rubbed it over there. I couldn't find anything with the light I had. I had a miner's lantern and did not try it with that. I tried the top with my ax, and had a light on my head, and did not see anything. It appeared to me perfectly safe, and sounded good as far as I sounded it. Didn't sound drummy. When a rock is loose and liable to fall, you can take a hammer and sound it, and it sounds drummy. *** I sounded the rock around the timber, and it sounded solid. The top did not have a sign of a crack in it that we could find. I knocked the timber out with my ax. Without warning the rock fell and caught me. *** The handle of the ax was about a foot and a half long. I was standing under the low top. There wasn't any shattered rock over me. I could not have stood under the high top and taken my hammer and knocked that prop down. I guess I could have taken another piece of timber and knocked it down, and that would have been easy to do. *** Yes, I could, with a piece of timber, have stood under the high top and knocked the props out without any trouble, but I stood under it, and I knew that prop was there for the purpose of holding up that rock, and I had put it there. No, I did not know it was there to hold up that rock. That rock was good and strong. It is customary with miners to set up props whether the rock is loose or not. That rock right there was sound and all

right at the present time."

With respect to his duty and authority over the heading, plaintiff testified:

"I always asked Henderson about my place in going down and up. Yes, I had entire charge of that heading while I was driving it. I had to set up the timbers and take care of the job. As far as a miner had anything to do with it, I did, and I had to get out the coal. From the time I went down and came up the heading was under by entire charge. While I was out it was in charge of the company, but that was my working place. They were not under any obligation to do any propping there, nor to take down any prop. My duty was to timber up the heading and take care of it, of course. *** Yes, sir; I said it was Mr. Henderson's duty to inspect the work every time I finished, to see if it would be safe for the following shift to go to work; that is, if there was any gas or loose rock in there. If I saw loose rock, it was my duty to take it down. It was also my duty to examine my working place. I took down one prop, and the rock fell in about four or five minutes after I took the timber down. *** After I took the prop down, I was fixing to come out from under the brushing to light my shot. I had the hole bored and tamped up, and I was aiming to fire my shot and take the rock down and put it away."

One Dalrymple, assistant general superintendent of defendant, having 18 years' experience in and over mines, testified:

"That it is possible, in removing a prop, to tell whether the rock is going to fall or not. There may be cases where one could not tell, but I fail to see them. A loose rock is bound to give warning if you properly test it. You can test it by sound, but some don't believe in that, or by your sense of touch--put one hand against it and rub. Most practical miners test it by sound. The thickness of it determines the sound that gives. As to whether or not it is safe to stand under a roof where you are going to knock the props out, it is the height of folly to knock the prop out in the manner in which this was knocked out. Where timbers had to be removed from under the roof, they could be shot out with dynamite, and this was frequently done; but it was allowed to be done only by the regular shot firer."

The band boss, Henderson, testified:

"I did not have any supervision or control over Mr. Wade while driving his heading. Nothing only when he did not do his work right. I was supposed to see that be done it right. He was to use his own judgment with reference to driving that heading, as to time of doing it, the way of doing it, and manner of doing it. *** It

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