49 So. 305 | Ala. | 1909
This is an action brought by the appellee against the appellant to recover damages for an injury received by the plaintiff while working in the coal mine of the defendant. The first assignment insisted on is to the action of the court in overruling the demurrer to the third count of the complaint. Said third count claims that the injury was received as the result of certain rocks or slate falling on the plaintiff. It is alleged that “it was the duty of the defendant to employ, as fellow servants of the plaintiff, men who were reasonably skilled in and about the duties they were to perform, wTho were compentent, and who were careful; but the defendant violated its duty to plaintiff in this respect, and negligently employed and placed in the same room with the plaintiff one Martin Sharrat, who was not reasonably skilled in the duties he was to perform, or who was incompetent and careless,” and “as a proximate result of such employment of said Martin Sbarrat, as alleged, he received the injuries above set out.”
The law is that in order to recover against the master, on account of the employment of incompetent servants, it must be shown that the master knew of the incompetency of said servant, or by the exercise of reasonable diligence could have ascertained that fact. — 1 Labatt, Master & Servant, pp. 418, 419, § 193a; Bailey’s Master’s Liability for Injuries to Servants, pp. 48-50; 26 Cyc. 1298, 1299; First Nat. Bank v. Chandler, 144 Ala. 286, 308, 39 South. 822, 113 Am. St. Rep. 39. It. is also, laid down, as a general proposition, that the complaint must allege that the master kneAV of the in competency, or by the exercise of reasonable care could have known; but it is not necessary that those exact words should be used. Under the general trend of our own and other decisions, we hold that the allegations in this
Upon the other ground of demurrer, to the effect that the causal connection between the incompetencv of said Sharrat and the injury is not shown: Under the very liberal (if not lax) rules laid down by this court, by which mere general averments, without stating the quo modo, or the acts constituting the negligence, are held sufficient,- this count is not liable to that cause of demurrer either.
The court erred in refusing to give charge No. 1, requested by the defendant. No causal connection is shown between the incompetency of Sharrat (if that was proved) and the injury. The evidence shows that the plaintiff himself had direction of the work, and it is not shown that he or any one else suggested the necessity of propping the place before the injury, nor that any duty rested on Sharrat in regard to that matter.
The evidence shows that the plaintiff and one Banks were employed, under contract, to do a certain work, to wit, to drive or run a heading in the air course at a stipulated price per yard; that for some reason, not shown, one Sharrat was temporarily substituted by defendant for Banks; that said parties furnished their own laborers to assist in the work. It is not shown that there was anything dangerous in the place assigned for them to work in. It is not shown that the defendant was under any obligation to prop the place where the work was done; but, on the contrary, the evidence is that plaintiff was to do that himself. The only intimar tion in the evidence is that if the place had been propped, at the stage of the work when the injury was received, the injury might have been avoided; but the plaintiff himself testifies that he is an experienced miner, that he examined the place and did not discover that the overhanging rock was loose, also that he did not think he needed any timber. It is not shown that he made any request for timber except that he ordered some timber (for what purpose not stated) about two hours before the injury, and continued to Avork without it. Consequently charge 5, also, should have been given.
The questions to the witness Banks, tending to show that the superintendent, BroAvn, was not familiar with •the working inside the mines, should have been excluded, as Brown’s superintendence was shown by the evidence to relate only to the work outside the mines.
The testimony of the witness Banks as to the proper way to drive a heading, and as to the manner in which
The question to the witness Rodgers as to whether Sharrat was (as shown by his work) a careful or a careless minor should have been excluded. The question to be determined was whether he was competent.
The judgment of the court is reversed, and the cause remanded.
Reversed and remanded.