Tutwiler Coal, Coke & Iron Co. v. Farrington , 144 Ala. 157 ( 1905 )

TYSON, J.

All the counts of the complaint were eliminated from our consideration on this appeal except the fourth, after amendment, and the sixth. The fourth count is drawn under subdivision 1 of the employers’ liability act (Code 1896, p. 555, c. 43). It follows substantially the language of the statute with respect to the duty and a breach thereof by defendant, and avers a defective condition of the roof and that a portion of it fell as a proximate consequence of the defect, and that plaintiff was injured at a point under said roof where he had a right to be. It has been uniformly held by this court, that such a count is sufficient. — L. & N. R. R. Co. v. Hawkins, 92 Ala. 243, 9 South. 271; M. & O. R. R. Co. v. George, 94 Ala. 216, 10 South. 145; Laughram v. Brewer, 113 Ala. 599, 21 South. 415; L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 South. 349, and cases there cited. Such holding necessarily involves the sufficiency of the allegation of a duty on the part of the employer to maintain in reasonably safe condition his works, ways, machinery, or plant, and his negligent -failure to do so, and, of course, imposes upon the plaintiff the burden of showing the relation of employer and employe, and the duty of the defendant to maintain the works, ways, etc., at the place where the injury occurs, as well, as the negligence of the employer or some one in his service intrusted by him with the duty of seeing that they were in proper condition.

If it is the practice or usage of miners to prop the roof in their rooms, and the plaintiff was injured by the falling of the roof when such a duty was upon him, this is a matter of defense, which, if shown, -wo-uld of course, defeat- the plaintiff’s right of recovery. Such facts, when established would utterly refute the allegation óf duty laid in the count. But, in the absence of proof of the fact, the averment of duty upon defendant to prop the roof of its mine must be taken as true, even though it be conceded that the practice or usage obtains in the mining of coal for thé miner to see to the safety of the ro.of in his- own room, and this usage'is of such character that the courts will take judicial notice of it. Whether such usage does obtain, and, if it does, whether the courts will take judicial notice of it, are questions upon which we express no opinion.

The count is not subject to the objection of vagueness, uncertainty, and indefiniteness. Authorities cited, supra. Will at we have said also disposes of those grounds of demurrer urged against the sufficiency of the allegations of the sixth count adversely to the appellant.

The third plea of defendant was clearly bad. — Osborne v. Alabama Steel & Wire Co., 135 Ala. 571, 33 South. 687.

The objection interposed to the question propounded to Newborn, “Within what time could that roof have been propped or made secure?” was that it called “for a conclusion of the witness.” We think not. It is the statement of fact, to which the witness • could testify if he knew it. If it be conceded that it was improper to permit this witness to state that it was the company’s duty to keep up the roof in the heading or entry where a part of the roof fell and injured the plaintiff, because it involved a conclusion of law and fact, it was error without injury, since this duly is otherwise shown by the undisputed testimony in the case and practically admitted by the defendant. After defendant, on cross-examination, had shown that it was not customary to prop the roof where plaintiff was injured, the question was then asked by it of the witness, “And had not been the custom?” To this question an objection was sustained, and -we think properly so. The question propounded to Durie, the mine foreman of defendant, “Whether or not ordinarily, in making an inspection of a mine, you sound every piece or particle of it, or how do you do that?” was fully answered, notwithstanding the objection to it was sustained. If there was error, therefore, in the ruling, it was clearly innocuous.

This brings us to a consideration of the several charges refused to the defendant. The first of these insisted on is the one instructing‘the jury, upon a belief of the evidence, they cannot find for the plaintiff under the fourth count of the complaint. This contention is based upon (lie proposition that the testimony without dispute establishes that plaintiff knew of the defect in the roof, and that it had not been propped or otherwise supported so as to make it safe, and that, knowing these facts, he voluntarily encountered the danger without an assurance on. the part of the defendant to repair the defect. It is undoubtedly the law in tliis jurisdiction that “a person who continues in an employment with full knowledge of the risk run. and who voluntarily goes to do that which he knows will expose him to danger, cannot recover for injuries so received. * * * This doctrine is founded on the consent, express or implied, of the employe to take the chances of injury or escape from a threatening situation; but such consent is not implied, unless the danger is obvious or is known to the employe.” Osborne v. Alabama S. & W. Co., supra, and cases there cited. It is undoubtedly true that the plaintiff knew that the roof was not supported; but whether1 he knew of the dangerous condition of the roof at the point where he was injured was, under the testimony, a matter of dispute, and therefore a question for the jury. Nor can it be affirmed as a matter of law, as is contendéd, that the averments (if the fourth plea of defendant were established bv the evidence. Whether it was or not was a. question for the jury. There wás, therefore, no error in refusing the charge under consideration.

Charge No. 2, .refused to defendant, should have been given. The sixth count, as we have said, states an action at common law. The undisputed testimony establishes that th^ inspection and maintenance of the roof of the entry in a safe condition where the injury occurred was committed by defendant to one Durie, its mine foreman, and there is no averment of his incompetency, and, for that matter, no evidence of it. The only negligence which the testimony tends to establish was that of Durie. He was at common law a fellow servant of the plaintiff, and for his negligence, under 'the count under consideration. the defendant cannot be held liable. The principle governing and controlling on this point is tersely and accurately stated in Woodward Iron Co. v. Cook, 124 Ala. 353, 27 South. 458 in this lañguage: “An employer is under the duty of using ordinary care to furnish the employe with place, ways, and appliances reasonably safe for use; but by 'the law as it has long been recognized by this court the duty of maintaining such safe conditions may be discharged by committing its performance to agents carefully selected for competency and fitness. — M. & O. R. R. Co. v. Thomas, 42 Ala. 672; A. G. S. R. R. Co. v. Carroll, 97 Ala. 126, 11 South. 803, 18 L. R. A. 433, 38 Am. St. Rep. 163; M. & M. R. R. Co. v. Smith, 59 Ala. 245. No fault is imputed to the defendant in respect of its selection of servants.”

We have examined charges numbered 3, 6, 7, 8, 9, 10, tand 11, refused to defendant, and entertain the opinion that they were properly refused. The correctness of written charges numbered 4, 5, and 12 is not insisted on, and therefore we have not considered them.

Reversed and remanded.

Simpson, Anderson and Denson, JJ., concur.