Woodward Iron Co. v. Cook

• Decision Date: 10 February 1900
• Citation: 27 So. 455,124 Ala. 349
• Parties: WOODWARD IRON CO. v. COOK.
• Court: Alabama Supreme Court

27 So. 455

124 Ala. 349

WOODWARD IRON CO. v. COOK.

Supreme Court of Alabama

February 10, 1900

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by W. H. Cook against the Woodward Iron Company. From a judgment for plaintiff, defendant appeals. Reversed.

The appellee, the father of one John Cook, a minor under 21 years of age, brought this suit against the appellant to recover damages on account of personal injuries received by his son while working in defendant's coal mines. There were 17 counts in the complaint, but, the general affirmative charge having been given on all the counts except the first, second fourth, and fourteenth, it is only material to consider these four counts. The first count alleges that the defendant was engaged in operating a coal mine; that it had a subterranean railway into the mine entries, by means of which the coal mined therein was conveyed on cars, and was drawn over and upon such railway to the opening of the mine at or near the surface; that the cars were propelled by means of a hoisting engine, to which was attached a cable, which cable was attached to the cars, and by means of the cable the hoisting engine propelled the cars up an incline from out of the entries to the mouth or near the mouth of said mine, and by means of such cable the cars were lowered into the mine from near its mouth into the slope and entries; that plaintiff's said minor son was in the service or employment of the defendant, his duties being to open or close the air traps or air doors; that he was also engaged in spragging the wheels of the cars when they descended into the mines, for the purpose of stopping or checking the speed of the same; that while engaged in the discharge of his duties and while the car or train of cars was being lowered into the mine from near the mouth down the slope the cars left the track of the railway, and became derailed, and one of the cars ran over John Cook, and injured him. In describing the particular negligence which it is alleged caused the injuries to John Cook this language is used: "And plaintiff avers that said accident and said injuries were caused by a defect in the condition of the ways, works, machinery, or plant connected with or used by the defendant in its business aforesaid, in this: That the place where the said tram car or tram train left the tract was on a curve in said mine, and that the outside rail of said track on said curve was not properly raised or elevated as it should have been, so as to prevent said tram car or tram train from leaving said track when descending into said mine." In the second count the plaintiff adopted all the general averments contained in the first count, and in describing the particular negligence which it is alleged caused the injuries to John Cook the plaintiff uses this language: "And plaintiff avers that said accident and said injuries was caused by a defect in the condition of the ways, works, or machinery or plant connected with or used by the defendant in its business as aforesaid in this: That at the point where the said tram car or tram train left said track, at the time of the accident, there was a curve in said tram track or tram road which necessitated the placing of a guard rail on said track to prevent tram cars or train of trams from leaving said track or road or roadbed when passing around said curve. And plaintiff avers that there was no guard rail on said track at said curve, and that because thereof said tram cars or tram train, at the time of the said accident, while being lowered into said entry, left said track, or became derailed, inflicting the injuries aforesaid. And plaintiff avers that the said defect namely, the failure to have said guard rail on said tram road at said point arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service or employment of the defendant who was intrusted by it with the duly of seeing that said tram track was in proper condition at said place, namely that said guard rail was placed on said track." In the fourth count the plaintiff adopts all of the general averments contained in the first count, and in describing the particular negligence which it is alleged caused the injuries to John Cook this language is used: "And plaintiff avers that said accident and injuries were caused by a defect in the condition of the ways, works, machinery, or plant of the defendant used by it in its business aforesaid, in this: That at said point where said tram car or tram train left said track it was necessary to have a guard rail on said track to prevent the cars or trams, when passing over said track in being lowered into said mine, from leaving the same. And plaintiff avers that there was no guard rail on said track at said point, and that by reason thereof said tram car or tram train left said track, inflicting the injuries aforesaid; and plaintiff avers that the defect above mentioned 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 it with the duty of seeing that said track was in proper condition, namely, that said guard rail was on said track at said point." In the fourteenth count the plaintiff adopts all the general averments contained in the first count of the complaint, and in describing the particular negligence which it is alleged caused the injuries to John Cook the plaintiff uses this language: "And plaintiff avers that at the time of said accident the said John Cook was uninformed as to the dangers incident to the doing of the work he was engaged in at the time of the accident, and that he was under fifteen years of age, and was not familiar with and did not know the dangers hereinafter mentioned, incident to the lowering of trams or tram trains into said entry. And plaintiff avers that at the point where said tram or tram trains left said track at the time of the accident, trams and trains of trams, by reason of the defective condition of said track, and by reason of the defective condition of the trams being run over said track, were liable to leave said track when being lowered into said entry; and plaintiff avers that said accident and said injuries were caused by the negligence of some person whose name is unknown to plaintiff, who was in the service or employment of defendant, and who was at the time in the discharge of his...