Warrior-Pratt C. Co. v. Shereda , 183 Ala. 118 ( 1913 )

McCLELLAN, J.

— The complaint, as amended, contained four counts. All of these carried the material averment of relation of master and servant between plaintiff (appellee) and defendant (appellant) at the time plaintiff was injured by the falling of rock from the roof of the mine. Only counts 2 and 4 were passed to the jury. These were drawn under the first subdivision of the Employers’ Liability Act (Code 1907, § 3910). Neither of these counts was subject to the demurrer. Both sufficiently, under our rule, allege and describe a defect in the condition of the ways, works, etc., of the defendant’s mine, and conclude in the words of the statute whereby negligence is charged, as upon that defective condition, to have proximately caused plaintiff’s injury.

We are not able to find in this record any evidence, or legitimate inference from the evidence, tending to support the allegations of relationship of master and servant between plaintiff and defendant when he was injured. The application to the evidence here, of the accepted and often reaffirmed doctrine of Harris v. McNamara, 97 Ala. 181, 12 South. 103, and Lookout M. I. Co. v. Lea, 144 Ala. 169, 39 South. 1017, defining an independent contractor, leaves no doubt that the relation, in employment, alleged did not exist when the injury occurred. The sum of that evidence is that plaintiff engaged to mine coal in defendant’s mine, at a stated rate per ton, at a place and within the limits fixed by defendant’s superintendant. It is not shown, in any degree, that defendant or its representatives had any control or direction in respect of the details of the mining, of when or how plaintiff should do what he had engaged, as stated, to do. There is no presumption that he was a servant rather than a contractor. The burden was assumed by and was upon him to show that he bore at the time the relation of servant, in order to avail of the statute’s provisions. He has not shown that defendant had “control over the means and agencies” by which the mining of the coal in the area of his labors “was to be produced.” Accordingly the defendant was entitled to the general affirmative charge requested by it.

And upon the like considerations the court erred in the excepted to extract from the oral charge quoted in the twenty-fourth assignment of error. The plaintiff could not recover, under the complaint, unless he was shown to be a servant of the defendant.

The court also erred in restricting the defendant in its effort to show the full, whole contract or agreement between plaintiff and defendant. If they engaged to the “usual” effect “for driving rooms” in that mine, the terms that engagement comprehended were proper matters for the jury’s consideration.

There was irreconcilable conflict in the testimony upon the issue whether the rock which fell upon plaintiff came from the roof of the entry, where there was evidence tending to show that it was defendant’s duty to inspect for and remove dangerous rock or coal, or from the roof of the room or room neck in which there was testimony tending .to show it was the miner’s duty to inspect for and remove dangerous rock or coal. If the pleadings upon another trial again present that issue, all evidence calculated to discover the respective duties of mine operator and miner with respect to inspection for and the removal of loosened rock or coal should be received. On this trial the court appears to have unduly restricted the evidence in that regard. It may be quite material to determine at what point (if so) between the entry and the room neck or room the duty of inspection and care in this regard closed for one and began for the other, and equally as material to determine exactly wherefrom, with reference to the roofs of the entry, room neck or room, the rock causing the injury fell, or at what point, if so, with like reference, the initial leaning of the rock from its place above occurred.

Whether the entry from the roof, of which there was evidence tending to show the rock in question fell, was driven with due care and skill was the proper subject of inquiry of the expert witness, Robert Neil.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.