Simmerman v. Hills Creek Coal Co. , 170 Ala. 553 ( 1911 )

McCLELLAN, J.

The court did not err in sustaining the demurrers to counts A and C. It did not appear from these counts that at the time plaintiff was injured he was in the service of the defendant, and was discharging the duties of that service. Furthermore, no causal connection between the falling of the “rock or other hard substance from the roof of the mine” upon plaintiff, injuring him, and the latterly, generally, alleged wanton misconduct of any other employee of the defendant, is shown. Hence the counts failed to charge the aggravated wrong the pleader intended thereby to aver.

The report of the appeal will contain pleas 3, 4, 7 and 8. The purpose of pleas 3 and 4, judging the intent of the pleader from the frame thereof, was to aver a state of fact wherefrom it was to be concluded as matter of law that plaintiff negligently — without due care ■ — subjected himself to the hazard of the injury befalling bim. It was necessary that the facts averred should point, with certainty, to that result, viz., negligence of the plaintiff in so ordering his conduct.—Creola Lumber Co. v. Mills, 149 Ala: 474, 481, 42 South. 1019. Plea 3 was, in our opinion, rendered faulty by the employment therein of the alternative averment, “or near.” Had this averment been omitted, it would, in substance, have conformed the plea to that numbered 4, which, we think, was not demurrable. “Near” is a relative term. Knowledge of the hazard to which plaintiff subjected himself was essential to be shown in order to impute negligence to him; and negligence may or may not have infected his conduct in respect of his own safety according as ordinary prudence suggested. It was the office of the plea to show that he did not observe that measure of prudence in taking a position with reference to the insecure roof. It is averred that he knew he would be injured if the insecure top or roof fell, provided he was under or near it when it did fall. The requisite prudence to avoid the imputation of negligence might have been observed by plaintiff in ordering his conduct so as not to be under, or in dangerous proximity to, the disengaged top or roof, and yet injury might have resulted to him because he was near it. To what nearness, with respect to the actual danger zone of the insecure top or roof if it fell, ordinary prudence suggested as the limit of safe approach thereto, is left entirely unstated by the plea. In Meriwether v. Sayre Mining Co., 161 Ala. 441, 49 South. 916, plea 8 was approved, b-ut in it, as will be seen, the pleader had incorporated the terms “dangerously” and “negligently.” Other pleas in the case at bar conformed to plea 8 interposed in the Meriwether Case; and it would seem that the pleader here took a distinction between the legal effect of his pleas conforming to plea 8 in the Meriweather Case and that of the plea (3) under consideration. The demurrer to plea 3 was erroneously overruled.

The complaint, after two amendings, contained counts asserting two distinct theories leading to defendant’s liability. One was that the relation of master and servant existed between plaintiff and defendant at the time of plaintiff’s injury. The. other was that plaintiff was not then so related in employment to defendant; but was then engaged in the mine of defendant upon the invitation of the defendant. Answering counts declaring on both theories, the intent of the pleader, in plea 7, was at least alternatively, to impute to plaintiff the negligence of Robinson, “with whom plaintiff was jointly working in a joint undertaking,” in failing to see that the roof of the mine was properly supported. The plea was not a sufficient answer to those counts whereby liability was asserted as upon the theory that the relation of master and servant prevailed between plaintiff and defendant at the time of the injury. This important fact is not negatived in plea 7. In fact, it is conceded; for the effort was, by plea 7, to avoid liability because of the contributory negligence of one whose want of care was imputable to the plaintiff. Nor is it averred that Robinson was not a servant of the defendant. The averments of the plea are not inconsistent with the existence at the time of plaintiff’s injury of the relation of master and servant between Robinson and defendant. The fact that plaintiff and Robinson were engaged at the time in a joint service in a joint undertaking may have been true, and yet both of them may have been servants of the defendant. Nor does the plea assert that plaintiff or Robinson was an independent contractor, as that status has been defined here.—Rome & Decatur R. R. Co. v. Chasteen, 88 Ala. 591, 7 South. 94; Mayor, etc., v. McCary, 84 Ala. 469, 4 South. 630; Drennen v. Smith, 115 Ala. 396, 22 South. 442. The obligation assumed by the pleader, of course, was to so relate Robinson to plaintiff as to warrant the imputation to plaintiff of Robinson’s non-performance of duty. The demurrer objected that the plea failed in that particular. We think that ground was well taken, and that the demurrer should have been sustained. We see no fault in plea 8.—Merriweather v. Sayre Mining Co., 161 Ala. 441, 49 South. 916.

For the errors indicated, the judgment is reversed and the cause is remanded.

Reversed and remanded.

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