62 So. 70 | Ala. | 1913
Rehearing
ON REHEARING.
In deference to the earnest insistence of counsel for the applicant for rehearing, the original decision affirming the judgment below, and the bases for the conclusion thus given effect, have been carefully reconsidered. The application is without merit. It is settled here that an appellant can never have a reversal for special errors committed on the trial from
The undisputed facts show that intestate’s superior last visited the mines about 9 a. m. previous to intestate’s fatal injury about 1 p. m. of that day; that when intestate’s superior pronounced the rock safe at 9 a. m., its condition, with respect to support, was entirely different from that condition-just before and'at the time of the injury; that the change in this condition was wrought by intestate’s own labors in removing •the coal, which he was engaged in mining, that underlay the rock; that intestate was fully aware of the effect of the removal of this support from beneath the rock; and that he (intestate) sounded&wkey;tested — the rock with his pick and concluded it was still safe for him to place himself in the sphere of danger if it fell, a conclusion on which he relied and which unfortunately proved to be erroneous. There was no ruling in rejection of evidence that excluded testimony which, if admitted, could have effected to contradict in any degree the conclusions of the fact stated in the original opinion and reiterated on this occasion. No warning or advice could have added to his appreciation of the hazard, created by his labors, to which this record shows he voluntarily, and in the process of mining, subjected himself —Brammer v. Pettyjohn, supra. So, whether he then stood in the re
The application for rehearing is denied.
Lead Opinion
From the evidence, amply descriptive of the event, it appears, without dispute, that plaintiff’s intestate caused his own injury by cutting the coal from under, which supported the rock, by the falling of which upon him wrought his death; that the falling of the rock above him, was the consequence of the removal of its support, of which he was fully aware. He caused his .own injury. No negligence of the defendant contributed in any degree thereunto. He could not, under these circumstances, recover. The court did not err, to plaintiff’s prejudice, in excluding on motion the plaintiff’s evidence, nor in giving the affirmative charge requested by the defendant.
All other rulings adverse to the plaintiff were, if error, innocuous. Even if the assigned rulings on the pleading had favored the plaintiff, the plaintiff could not have recovered in this case. — Robertson v. Tenn. C. I. & R. R. Co., 174 Ala. 589, 56 South. 710, 711. The judgment is affirmed.
Affirmed.