Pratt Consolidated Coal Co. v. Bozeman , 192 Ala. 546 ( 1915 )

PER CURIAM.

(1) This cause was submitted to the jury upon count 13 alone. The gravamen of the action as disclosed by this count is that the servants of the defendant negligently put intestate to work in the mines while his feet were sore, and the skin on his said feet and ankles had been broken and punctured when his feet were exposed to dirt and cold and water; non constat there was no negligence in putting the intestate to work in the place in question unless his feet and ankles were at the time sore, etc. Therefore, in order to show the negligence charged as the proximate cause of the death of the intestate, it was incumbent upon the plaintiff to show that the defendant’s servants knew of the condition of the intestate’s feet and ankles, or were guilty of negligence in not first ascertaining the condition of same. There is no proof that they knew the intestate’s feet and ankles were sore. While the witness Davis testified that the intestate complained of same, there is nothing to show that he did so to, or in the presence or hearing of, the servants of the defendant, or that the sores were open to ordinary observation.

(2) Nor was it the duty of the defendant’s servants to make daily or frequent inspection of the convicts for such ailments or troubles as the one set up. They had the right to assume that if the intestate’s feet and ankles were sore or swollen, or pained him, he would make the fact known to them.

The trial court erred in not giving the general charge requested by the defendant, and the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, C. J., and McClellan, Mayfield, Somerville, and Gardner, JJ., concur. Sayre and Thomas, JJ., dissent.