43 So. 110 | Ala. | 1907
This action sounds in damages for personal injuries suffered by the plaintiff as a consequence of alleged negligence on the part of the defendant .or its servants. The complaint is composed of four counts. It is alleged in the first and second counts that a part of the roof oí a mine which Avas being operated by the defendant fell upon or against the plaintiff and broke his leg, AArhile he Avas in said mine by invitation of. the defendant, but not as servant or employe of the defendant. The first count ascribes the falling of the íoof and consequent injury to a defect in the condition of the ways, works, machinery, or plant of the defendant, in that part of the roof or top Avas not sufficiently secure, or Avas otherwise in danger of falling. In the second
The first question presented by this charge for determination here is whether the evidence was such as to require the trial couit to 'withdraw from the jury the consideration and determination of the question of negligence on the part- of the defendant or its servant. The evidence may be summarized as follows: The defendant was operating what are known as “Juanita Mines,” in Jefferson county, and the plaintiff was, when injured, mining ore in said mines, either as an employe of the defendant, or by invitation of the defendant, and for its benefit. F. H. Brown Avas defendant’s superintendent or “mine boss,” in charge and control of the mining operations; and the plaintiff testified that he Avas working under Brown’s orders and that BroAvn Avas there at the mines- eA^ery day from 6 :30' o’clock in thk morning until 5 o’clock in the afternoon. Plaintiff’s leg Avas broken by the falling of the roof of an entry of the mine in which he Avas at. work. He and his assistant, or “buddy,” Nix, opened the entry four days before- the accident occurred. Plaintiff had hvorked in the entry eArery day since it Avas started, and the work was at the time of the accident still being done by daylight. They would drive the entry about three feet ahead, when Brown, the “mine boss,” Avould go in and set timbers to support the roof permanently. The arrangement of the timbers may be aptly described by comparing it to a table. The square sets of timbers referred to by the Avitness correspond to the legs of a table, across the top of Avhich was stretched a straight piece of timber called a “collar.” The square sets of timbers were placed about three feet apart, and across the top
Brown’s evidence tended to show that the entry had not proceeded further than four feet beyond or ahead of the last Set of permanent timbers, and that the place Avas not- ready for another set of permanent timbers when plaintiff called for them; that the permanent timbers that had been set were properly set, and the falling of the roof Avas not due to any defect in the permanent 'timbers or the manner in which the lagging was done; and that no part of the roof over the permanent timbers fell. He'further testified that there Avas nothing to indicate that the roof above plaintiff was likely to fall; that it seemed solid; that he Avent under it and sounded it, and it Avas solid; that he told plaintiff it was all right, but to put in the temporary prop before he shot. Notwithstanding the undisputed fact that no part of the roof over the permanent timbers fell, yet, in view of other tendencies of the evidence, we do not think that this should operate to take away from the jury the question whether or hot the lagging was properly done. In other" words, it ivas open for the jury to infer that the lagging was laid improperly, and not as a reasonably prudent man under like circumstances Avould have laid them, and that this improper lagging or setting of the permanent timbers contributed to the weakness' of the roof that fell, and precipitated its fall, in ■ this view we conclude that the question-of the defendant’s negligence ve! non was one' to be determined by the jury, which could not properly have been withdraw, -from their' consideration. '
■ ’The- next question-is whether the evidence is such as should have required the trial' court to determine-' as matter óf larv that the plaintiff had such knowledge of the situation, and of the risks and dangers' connected thereAvith, that, in' continuing to work 'finder the roof, he should have been held to have assumed the risks of the situation,- cr to have been guilty 'of contributory neg
The next question is, does the. evidence so clearly show that the plaintiff was guilty of contributory negligence in remaining at work under the roof as that the court should have determined the question as one of law without referring it to the jury? The evidence without conflict showed that plaintiff had never mined any until he began to open the entry in which, he was hurt, for four days before the accident; that he was “green” and inexperienced, and was an 01 dinary farm hand; and all of this was well known to the “mine boss,” under whose orders he testified he was working. Brown was a miner or “mine boss” of several years’ experience. He went into the mine, and was told by the plaintiff a few minutes before the accident that he was ready for permanent timbers. Brown examined .the roof, sounded it, and pronounced it solid, and told the plaintiff that it was all right, but he wanted, him to put in a temporary prop before he. shot, and for him to cut a “hitch” in the floor for the prop, while he (Brown) would go and cut the temporary timber and throw it down. Brown left the mine to get the timber, and in a few minutes, while plaintiff was cutting the “hitch,” as he was directed, the •roof fell on him. Biown further testified that there was nothing to indicate that the roof above plaintiff was likely to fall. Under this evidence, can it be said as matter of law that the plaintiff appreciated the danger of the roof falling, or that it was so glaring, so imminent, or manifest as to prevent a reasonably prudent man from risking it? Brown, who was an expert in such matters, after sounding it, did not appreciate the danger of the roof falling, and it does seem that it would be a. stretch of the imagination to say, as matter of 1 aw, that the plaintiff did appreciate the danger, and, therefore, that he was guilty of contributory negligence in remaining under the roof to cut the “hitch,” as Brown had directed him to do. In the case of McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542, the supreme court of Massachusetts, through Holmes, J., uses this language: “When we say that one appre
There is evidence in the record which tends to suppoit the case as made by counts 1 and 2 of the Complaint; hence charges 2 and 3 were properly refused. — Sloss Iron & Steel Co. v. Tilson, 141 Ala. 152, 37 South. 427. Charge 6 pretermits all inquiry as to negligence on the part of the defendant and hypothesizes none on the part of the plaintiff. It was- properly refused.
Having found no error in. the record, the judgment appealed from is affirmed.
Affirmed.