Mascott Coal Co. v. Garrett , 156 Ala. 290 ( 1908 )

TYSON, C. J.

The only ground of demurrer to the first count of the complaint insisted on is that one which assails its sufficiency because it fails to show whether plaintiff’s intestate was injured in his room of the mine or. in the entry thereto. The theory of this ground and of the insistence in support of it is that it was plaintiff’s intestate’s duty to prop the roof of the room of the mine, and not the defendant’s duty. This precise point was ruled upon in the case of Tutwiler Coal Co. v. Farrington, 144 Ala. 165, 39 South. 898, adversely to appellant’s contention. Without determining the sufficiency of the count in other respects, it is clearly not subject to the ground of demurrer insisted on. This also disposes of the contention made with respect to the sufficiency of the second count.

The third count, after demurrer sustained to it, it appears by the judgment entry, was amended. But the amendment is nowhere shown in the record. After its amendment the defendant refiled its demurrers, which were overruled. The amendment not being shown, it is not made to appear that the court erred in the ruling. Non constat the amendment cured all objectionable defects pointed out by the demurrer. Error must be affirmatively shown, and cannot be presumed.

The objection taken to the fourth and fifth counts, and urged in argument, is that they do not state a cause of action, because the act of defendant’s servant who is charged with having superintendence was characterized as being “carelessly or negligently” done. It is said that the use of the word “carelessly” disjunctively with the word “negligently” is a fatal defect, thereby rendering the counts so entirely vicious as that they do not state a cause of action. There is no merit in this contention. These two words are synonymous of each other. 1 Words and Phrases, p. 974.

Plea numbered 4 was clearly subject to the ground of demurrer assigned to it, in that it failed to allege the duty of deceased to prop the room where he was at work when killed.

Plea numbered 8, to which a demurrer was also sustained, was also bad. The complaint alleged that it was the duty of defendant to prop the roof, or to maintain it in a reasonably safe condition, and although the deceased may have made the room by the mining of the coal, and thereby created the defect in the roof that caused his death, and knew of this defect, and voluntarily went under it, yet it cannot be affirmed that he was guilty of contributory negligence, unless he knew the defect to be a dangerous one, which is not averred.

One of the issues presented by the pleading was whether it was defendant’s or the deceased’s duty to prop the roof of the place where the rock fell, which the testimony tends to show was from the neck of the room of the mine. It was, therefore, competent for plaintiff, on cross-examination, to ask Pearce, the mine boss how ■ many room necks he had proped for the company in that mine.

Among the defenses set up was that plaintiff’s intestate had been warned by Pearce, the bank boss, that the rock which fell upon him was dangerous, and that he was instructed by Pearce not to work under it. This defense was undisputedly and without adverse inference established by the testimony of Pearce.

The predicate laid for the purpose of impeaching plaintiff’s witness Barnett went only to the denial by that witness of making certain statements which were asked for and was in no wise contradictory of Pearce’s testimony. Ilndeed;, that witness, who- was the only other examined with respect to the circumstances of the injury, corroborated Pearce, instead of contradicting him. Barnett did not even so much as state that he did not hear the conversation testified to by Pearce, in which he says he told the deceased of the dangeraus condition of the rock; much less deny that such a conversation was had.

The affirmative charge, requested by defendant, should have been given.

Reversed and remanded.

Anderson, Denson, and McClellan, JJ., concur.