Lockhart v. Sloss-Sheffield S. & I. Co. , 165 Ala. 516 ( 1910 )

McCLELLAN, J.

— Appellant (plaintiff) was injured by the falling upon him of a part of the roof of appellee’s mine, in which appellant was then engaged. The errors assigned relate only to the action of the court in overruling demurrers to pleas 3, 6, 7, and 12.

Plea 3 would, impute contributory negligence to plaintiff because of alleged violation, or rather the alleged failure to observe the requirements of rule 3, Code 1907, § 1034. That rule reads: “Every workman employed in the mine shall examine the working place before commencing work, and after every stoppage of work during the shift he shall repeat the examination.”

The act of which rule 3 was originally a part was first adopted in 1897. — Acts 1896-97, p. 1099, § 33. It was taken from the Pennsylvania Miner’s Law of 1893. —2 Brightlev’s Purdon’s Digest, p. 1372, § 320. I am not advised, at this time, what interpretation, if any, the courts of the state have placed on the rule in question. We are not, on this appeal, properly invited to fully construe rule 3.

It is my opinion that plea 3 is insufficient in its averments of facts from which, as a matter of law, the contributory negligence imputed flows. It is true the plea avers a failure to observe the requirements of the rule, but whether that breach of the rule was the proximate ■cause of the injury complained of cannot be supplied, in averment, by the allegation of the conclusion that it was the proximate cause of the injury. The essential averment, as we view it, to avoid the allegation of the pleader’s conclusion is that, had the examination required by the rule been made, the defective and dangerous condition would have been discovered by the party injured. As plea 3 is now phrased, it may well be that an examination would not have detected the defect and danger. Obviously, if an examination would not have availed to inform the party whose duty the rule declared so that he might have avoided the hazard as well as. have reported the condition in accordance with rule 2' (of the same section), no negligence could be ascribed to him. To aver that his failure to examine the working place was a contributing proximate cause is not the-legal equivalent of the stated essential averment; but, on the contrary, is the pleader’s conclusion from an unaverred state of facts. The court, in my opinion, erred in overruling the grounds of demurrer taking the points, indicated. It is perhaps proper to merely moot the-question of the character and extent of examination the rule contemplates, and this as bases for the ascription of negligence in a failure to examine as required.

Plea 6 was demurrable. — Osborne v. Ala. Steel & Wire Co., 135 Ala. 571, 33 South. 687. It is not contributory negligence on the part of a servant to fail to. give notice, within a reasonable time, of a known defective condition. Under the authority of Jones v. Pioneer Min. & Mfg. Co., 149 Ala. 402, 42 South. 998, and cases therein cited among others, plea 7 was subject to the demurrer interposed; and to overrule it was-error.

Plea 12 was, in my opinion, subject to the grounds of demurrer taking the point that it did not appear from the plea that the plaintiff knew of the unsafe condition,, and also appreciated the danger and risk attending it,, of the place whereat his injury occurred. The averment, does not necessarily ascribe his knowledge of the condition, and appreciation of the danger and risk to the-place at which he suffered injury. He may have be'en injured in one part of the entry and his averred knowledge might have been as to another part thereof.

Dowdell, C. J., and Mayfield and Sayre;, JJ.,

limit tbeir concurrence to the holding that pleas 6 and 7 are bad, and in imputing error in overruling demurrers to them. They are of the opinion that pleas 3 and 12 are not demurrable. The writer’s views are expressed in the opinion.

Reversed and remanded.

Dowdell, C, J., and Mayfield and Sayre, JJ., concur.