Cassiatore v. De Bardeleben Coal Co. , 204 Ala. 209 ( 1920 )

GARDNER, J.

A sufficient outline of the issues and tendencies of Die evidence in support thereof will appear in the statement of the case. As to whether or not sufficient proof was offered by the plaintiff to make out a case for submission to the jury upon either count need not be here determined, for the reason that the action of the trial court in giving the affirmative charge for the defendant may well be rested upon the fact that plea 14, setting up contributory negligence, was proven without dispute.

The undisputed evidence in this case discloses that it was the duty of plaintiff’s intestate and his companion to make safe the roof of the mine, and that at this particular point the draw rock (the falling of which caused his death) was soft and liable to fall at any time — a fact well known to any experienced miner, and of which he had been repeatedly warned. The evidence also shows without conflict that, under such circumstances, the draw rock should .first be pulled down, and the coal afterwards removed. These were the instructions of the mine foreman, and the proof shows, as alleged in the plea, that plaintiff’s intestate disregarded these instructions, and in this manner contributed to his death.

There was no objection by demurrer to plea 14. Issue was taken thereon, and every material averment thereof proven without conflict. The defendant was therefore entitled to the affirmative charge. Binding no error in the record, the judgment of the court below will fie here affirmed.

Affirmed.

ANDERSON, C. J., and McCLEDLAN and SAYRE, JJ., concur.

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