47 So. 248 | Ala. | 1908
The complaint, when filed, contained four counts, numbered 1, 2, 3, and 4. It was subsequently amended by adding counts numbered 5 and 6. The
The first of these was clearly attempted to be framed under subdivision 3 of the employer’s liability act (section 3910 of the Code of 1907.) ’ After averring the relation of master and servant between plaintiff’s intestate and the defendant, and the authority of Yarnon to give orders to deceased, to which the latter was bound to conform and did conform,, it is further averred that “the negligence complained of consisted in this: That Yarnon negligently directed plaintiff’s intestate to shovel dirt and rock from a bench on a Avail, where there was a rock in such position that it was liable to fall upon plaintiff’s intestate and injure him; that the fact that said rock was in such a position that it was liable to fall and injure plaintiff’s intestate Avas known to said Búd Yarnon, or by the exercise of due diligence should have been knoAvn to him, at and before the time he directed plaintiff’s intestate to shovel dirt and rock at a place where said rock was liable to fall upon and injure him.” It is entirely clear that the gravamen of the count was the negligent giving of an order by Yarnon which caused the deceased, in obedience thereto, to perform Avork for defendant in an unsafe place. The negligence complained of is predicated upon the averment of knowledge npon Yarnon’s part of the hazardous character of the place, or upon the fact that by the exercise of due diligence he should have knoAvn that it was unsafe. It is also entirely clear that, unless superintendence of the place was committed to Yarnon, as well as the authorization to give the order complained of, no duty rested upon him to ascertain its safety.
The other count was framed under subdivision 1 of said act, and sought a recovery for the death of plaintiff’s intestate by reason of a defect in the condition of the ways, works, machinery, or plant used in the business of defendant. It is alleged “that said defect arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or of some person in the service of defendant and intrusted by it with the duty of seeing that the ways, works, machinery, or plant were in proper condition; that said defect complained of consisted in this: That a wall under which plaintiff’s intestate was engaged in the performance of his
Under the testimony we do not doubt that the wall was a part of the ways or works of the defendant, within the meaning of subdivision 1 of the act, and that the duty was upon defendant to discover and remedy the defect complained of. Indeed, it is shown by the undisputed testimony that defendant assumed the performance of this duty, by having the wall inspected and picked, so as to relieve its servants from the danger (which would otherwise obtain) of being injured by falling-rock, etc. It is undoubtedly the law that the defendant was under the legal duty to furnish to the deceased a reasonably safe place in which to work, and to this end it was its duty to inspect the wall as often as was necessary to prevent injury to him and to its other servants engaged in work upon the bench, as the result of rock or other substances falling from the surface of the wall. Bailey’s Master’s Liability for Injuries to Servants, p. 108. And the more the weather conditions were conducive to the falling of rock or other substances, the greater was the diligence required' with respect to the examination or inspection of the wall.
The evidence also establishes, without dispute, that after a snow, freeze, or rain the wall was dangerous to those engaged in work upon the bench below, because of falling rock and other substances, and that this was known to the defendant’s servants engaged in work at
'The only reasonable inference afforded by the evidence is that he knew that the wall had not been inspected or picked, and that it was dangerous to work upon the bench beneath it. Indeed, witness Zuber swore that all of the employes knew that the wall was more dangerous after a freeze or rain. Furthermore, the testimony undisputedly shows that, when he applied to Yarnon for leave to shovel “sprawl” from the bench, he was warned by Yarnon not to work at the place (which was under a mud seam) where he was struck by the falling-rock or “sprawl,” because it was dangerous. It is true that Yarnon testified that the only danger he warned him of was the danger of the mud seam; and it is also true there is testimony tending to show that the rock that struck deceased fell from a place on the face of the wall other than the mud seam. But we apprehend that this fact, if such it was, could not alter the fact that deceased was guilty of negligence which will defeat recovery in the case. He knowingly went to a place which was unsafe; and he did so of his own volition, for he was
The affirmative charge as to this count, requested by defendant, should have been given.
McCLELLAN, J. — The ¡operation in progress, and in Avhich intestate Avas engaged as an employe or servant 'of the appellant at the time of the injury, Avas that of quarrying rock. The rock was being taken from a mountain side; and the method for removal was to disengage the rock, by means of drill and dynamite blast, in sections approximately 12 feet wide running across the surface of the elevation, beginning at the top. This process produced a ledge, or what is called in the record a “bench,” which in distance from the top or bottom of the quarry varied as the deposit was drilled, blasted, and removed. As the bench Avas thus broken and the rock removed, the dangers of injury to laborers thereon from loosened and falling rock, dirt, and debris increased in the proportion that the face of the quarry was above the line of the bench. Under the influence of natural laws of the character here to be mentioned all must be presumed to be familliar with, and to engage in reference to, occurrences immediately result
We are of the opinion, after a careful review of the testimony explanatory of the circumstances and surroundings of intestate’s employment, that, whatever may have been his exact location on the ledge just prior
It is axiomatic that negligence, to liability, of the master cannot exist where the injury is the proximate result of the dangers incident to the employment and which were known to the employed. The assumption by the injured of the risk of occurrences ordinarily attending such dangers, so known, forbids predicating a charge of negligence against the master with respect to injuries proximately flowing from those occurrences. So it follows that, the injury to intestate having proximately resulted from the known dangers ordinarily incident to his employment, there was no negligence attributable to the master, or to any one for whose conduct he was responsible. The general duty to use due
The third count, to which, with the second, excluding the others, the jury expressly referred its verdict, is based upon alleged negligent conduct or omission with respect to a described defect in the condition of the ways, works, etc. Assuming, without affirming it, that the described wall of the quarry was within subdivision 1 of the liability statute, .the above conclusions apply to deny a recovery under this count, for the reason that the injury in question resulted proximately from the dangers, known to the intestate, incident to the employment, and not to any defect of the condition of the ways, works, machinery, or plant of the appellant.
In my opinion the affirmative charge, requested by the defendant, should have been given, and its refusal was error, for which the judgment is reversed. This ruling being-vital to a recovery in the cause, I can see no good reason to remand it.