Patterson v. Alabama Fuel & Iron Co. , 194 Ala. 278 ( 1915 )

SOMERVILE, J. —

The principles of law which fix the liability of the owner of premises for injuries suffered thereon by one who was there by the invitation of the owner are well settled by numerous authorities.

(1, 2) When a mine owner invites a second person to assist in driving an entry and mining coal therein, and the latter is injured by reason of a dangerous condition existing at any place in the mine, to support a recovery against the owner therefor: (1) The circumstances must be such as to justify legal right, derived from the owner, to occupy the place where his injury occurred; and (2) it must be apparent to the owner, considered as a man of ordinary powers of observation, that the position likely to be assumed by the second person in the exercise of the right so acquired with respect to the owner himself or some physical agency which was under his control at the time, is such that the second person will he likely to suffer injury if the owner does not take the precautions to prevent that injury which would occur to a prudent man as being appropriate. —Lookout Mt. Co. v. Lea, 144 Ala. 169, 175, 39 South. 1017. The owner’s duty to take such precautions is coextensive with the premises to be used, but it is not limited to the immediate locality where the contemplated work is to be done. Manifestly, it extends to every part of the premises, and every instrumentality thereon, which may be visited or used by the workman for a purpose incidental and reasonably adapted to, or associated with, the accomplishment of the purpose for which the invitation was given. — S. S. St. & I. C. v. Tilson, 141 Ala. 152, 37 South. 427; Ala. S. & W. Co. v. Clements, 146 Ala. 259, 40 South. 971. And even when this is not the case, the custom of the workman, or his fellow workmen, may, if long continued and acquiesced in by the owner, amount to an implied invitation to do the act or be at the place in question. — 29 Cyc. 457 (v), and cases cited.

(3) The evidence in the instant case, even that offered for the plaintiff excludes every inferential element upon which any breach of duty by the defendant to the intestate could be grounded. The air course in which the intestate was killed was but a rough passageway for the circulation of the outer air, and it was otherwise used only as a conduit for the power cable. That it was neither adapted nor designed for any other use must have been clearly apparent to any man of even the least experience and intelligence, and the intestate was a miner of long experience. Its very use and condition was a sufficient warning to him not to enter, and defendant was under no duty to keep him out by guard rails or posted warnings. His employment by a contractor to' mine coal in the heading could not by any reasonable association of ideas, have suggested to defendant the likelihood of the intestate’s entrance into the air course for any legitimate purpose incidental to his occupation. It cannot be contended that his presence at the place in question was either for convenience or by necessity, so far as his work was concerned. The only possible explanation of it is that he had stored his powder in the air course, and knowing that the mine inspector was inspecting the mine in that immediate vicinity, he hurried in to fur-’ ther conceal or remove the powder to prevent its discovery; this in view of the statutory requirement (Gen. Sess. Acts, 1911, p. 530, §§ 84, 85) that powder in mines should be kept in locked wooden boxes not nearer than 100 feet to any working place, and the fact that intestate’s employer kept a box for that purpose at a place on the main slope. If this be a tenable assumption, as we think it is, it is of course true that the intestate’s violation of the law would not necessarily prevent a recovery for the proximate negligence of defendant. But the fact that such use of the air course by the intestajte would be a violation of the law would, of itself suffice to remove it from the contemplation of defendant as a likely or reasonable act incidental to the intestate’s employment. This assumes, of course, that defendant did not know that the air course was being used for such a purpose, and did not, by acquiescence, impliedly invite it; and nothing in the evidence has the remotest tendency to suggest such knowledge or acquiescence, nor, indeed, that any one else ever used it for any purpose. The plaintiff’s own witness, one Williams, testified: “We didn’t use that place at all in our work, where Mr. Patterson was found. We could not use it and would not do it. ':i * * I do not know what Mr. Patterson was doing down there at the time he got hurt. He came by me in a big rush; I was on the side track. The powder box was on the slope somewhere. We had a lock box we were supposed to keep the powder in. About the time I saw him going down there in a big rush, the mine inspector was in there. * * * I am the one that found, after Mr. Patterson died, his powder hidden away down there in this slope or air course.”

(4) It is suggested that perhaps this employer, Richardson, sent the intestate into the air course. If so, Richardson might be liable himself, but he- could not thereby extend either the duty or the liability of this defendant; for Richardson was not authorized to use the air course any more than was the intestate.

(5) It is urged that defendant’s failure to keep the cable properly insulated was a violation of rule 12, § 100, of the Mining Act of April 18, 1911 (Gen. Acts 1911, pp. 530, 535), and hence, this being negligence per se, plaintiff shows a right to recover. Conceding, for the argument, that the cited regulation applies to a cable in an unused section of an air course such as this, it is clear that its violation would be a breach of duty only to those persons who were, when injured thereby, rightfully present at the place of contact and danger, and in the exercise of their legal rights. — 9 Cyc. 438, and cases cited in note 62.

(6) The trial court did not err in giving the general affirmative charge for the defendant, as requested in writing.

Where there is no evidence to support a cause of action, the burden of proving which is upon the plaintiff, the trial judge should, upon request of the defendant, direct a verdict for the defendant without hypothesis as to believing the evidence, since there is nothing for the jury to believe. — L. & N. R. R. Co. v. Perkins, 152 Ala. 133, 139, 44 South. 602. This being the situation in this case, the trial judge committed no error prejudicial to plaintiff in requiring the jury to sign the verdict without retiring from the jury box, although plaintiff’s counsel objected thereto and requested that the jury be sent out. See Tobler v. P. M. & F. C., 166 Ala. 482, 485, 52 South. 86.

(7) After the ease had been closed on both sides, the reopening of the evidence by plaintiff was a matter within the unrevisable discretion of the trial court, and its denial cannot be a ground for the reversal of the judgment. — Morrissett v. Wood, 123 Ala. 384, 26 South. 307, 82 Am. St. Rep. 127; Chandler v. Higgins, 156 Ala. 511, 47 South. 284.

Let the judgment be affirmed.

Affirmed.

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