Warrior River Coal Co. v. Thompson , 193 Ala. 639 ( 1915 )

SOMERVILLE, J.

The evidence shows without dispute that due care for the safety of miners requires that the roof of the mine should be supported, and that the roof above the roadway must of necessity be supported by cross-collars, and not by perpendicular props, and it tends to show that there was a want of due care in this respect by some one as to the roof above the roadway at the point where plaintiff’s witnesses say this rock fell from. The evidence is in dispute, however, as to whether this rock fell from above the roadway, or from the side where a perpendicular, prop could have been used for its support, and in dispute also as to whether plaintiff was intrusted with the duty and armed Avith the authority to set cross-collars Avhere, in his judgment, they were needed. There is no dispute as to plaintiff’s duty to know the condition of the roof wherever he was working, and, except as to collars above the roadway, to place timbers wherever needed for its safe support, and to be responsible for its being put and kept in proper condition.

(1) It is clear that, if the jury found the disputed issues, as above noted, in favor of plaintiff, defendant could not escape liability on any theory of plaintiff’s assumption of the risk of injury resulting therefrom, nor of plaintiff’s own negligence as contributory thereto; this under the express provisions of the statute (section 3910), as amended by the Code of 1907. Hence defendant was not entitled to the general affirmative charge as to either count of the complaint, nor as to any of the pleas of contributory negligence.

(2-4) On the other hand, if the jury should have found either that the rock did not fall from above the roadway or that even if it did, plaintiff was under the duty and had the authority to place cross-collars under it to support it, and thereby conserve his own safety, then in either case plaintiff was not entitled to recover. This result necessarily follows as to the first count, without any special defensive plea, because the allegation of negligence on the part of defendant’s superintendent, Savage, is refuted, and plaintiff’s case, as therein stated, fails. The same result follows equally under the second count; but here, under the rules of pleading which are thoroughly settled in this state, the result — nonliability—is not available to defendant without a special plea setting up the duty of plaintiff with respect to the time and place of his injury.

(5-7) Defendant’s plea 3, which was eliminated by demurrer, undertook to set up such a duty on the part of plaintiff. This plea is substantially, and almost verbatim, a copy of plea 6 in Maddox v. Chilton W. & Mfg. Co., 171 Ala. 216, 55 South. 93, which we held good as against the 'grounds of demurrer there assigned, and which was discussed only in the aspects thereby presented. We ai>e now satisfied, upon a studious consideration of the question, that this plea is a perfect and complete answer to any count of a complaint, framed under subdivision 1 of the statute, whether it be regarded as a plea of assumption of risk, or merely an anomalous plea in confession and avoidance. If, as here, the count does not name as the negligent servant some person other than the plaintiff, a general denial by the defendant would not suffice, since the plaintiff would perfectly prove his cause, as alleged, by showing his own negligence with respect to the origin, discovery, or removal of the defect complained of. If, on the other hand, the count does name as the negligent servant some person other than the plaintiff (as in the first count), or if the negligence is imputed personally to the defendant, and not to his servant, then very clearly the defense set up by the special plea in question could just as appropriately be shown and availed of under the plea of the general issue. See B. F. & M. Co. v. Gross, 97 Ala. 228, 12 South. 36.

(8, 9) Counsel for appellee present a vigorous arraignment of plea 3 in this case as an answer to the second count of the complaint, but the criticism is for the most part founded upon a misunderstanding of the scope of the plea and the burden of proof which it imposes on the defendant. There would be a clear failure of its proof if it appeared that the plaintiff was not authorized to remedy the defect complained of upon his own initiative, but only with the advice and consent of another. And equally so if it appeared that it was the master’s duty, as it certainly is unless otherwise stipulated, to seasonably furnish the plaintiff with the materials and facilities needful for the removal of the defect. For with the defendant’s failure in that regard there fails also the duty of the plaintiff to remedy, and that duty, once assumed by the plaintiff, reverts pro tempore to its original bearer; in other words, the master’s default suspends the servant’s cluty.

(10) The trial court erred in sustaining the demurrer to plea 3. It is, however, insisted that the second count was effectually eliminated from the case by certain special instructions to the jury, and that, therefore, any error as to a plea to that count was error without injury. We have examined these instructions with care, and we do not think that their requirement that the plaintiff must recover, if at all, only for the negligence of the bank boss, Savage, could be construed as an elimination of the second count of the complaint; since Savage’s negligence with respect to the condition of the roof would manifestly have been a proper basis for plaintiff’s recovery under either count. The charges referred to deal only with plaintiff’s cause of action, and not with defendant’s defenses, and from the entire record we are of the opinion that the erroneous elimination of this plea was probably injurious to defendant.

(11, 12) Charges 2 and 3 refused to defendant leave out of consideration that phase of the evidence which tends to show that, regardless of any general rule of defendant’s, the bank boss himself forbade the use of collars at the time and place in question, and declined to furnish collars for such use as requested.by plaintiff. If the jury believed this evidence, and also that the roof was dangerously defective without the collars, and that the rock that fell was over the roadway, where collars only could have been properly used, it would have been their duty to find for plaintiff, regardless of the pleas and proof of contributory negligence.

Some charges were given to the jury which were unnecessary, and in fact inappropriate to the real issues that must decide this case, but it is not necessary to consider other instructions given or refused, since they may not recur on another trial under the issues as we have outlined them.

For the error noted, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

Anderson, C. J., and Mayfield and Tilomas, JJ., concur.