Sloss-Sheffield Steel & Iron Co. v. Chamblee, 48 So. 664

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48 So. 664 | Ala. | 1909

Lead Opinion

SIMPSON, J.

This action was brought by the appeL lee against the appellant to recover damages for an injury claimed to have been received by the plaintiff by the breaking of a wire rope while the plaintiff was at work in a coal mine belonging to the defendant.

The first assignments insisted on relate to the overruling of demurrers to the complaint as amended. Said complaint states only inferentially that the plaintiff *188was employed at all, and only that he was “engaged in or about said business of the defendant.” It does not state that he was engaged in or about the “particular service” required by his employment. This court has said that under our statute the party claiming damages must be an employe, at the time of the injury, by contract, express or implied, binding on defendant, and the injury must be received while rendering the service required by the particular employment. — Ga. Pac. R. R. v. Propst, 85 Ala. 203, 205, 4 South. 711. This point was not. presented by demurrer in the case of Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115, 42 South. 96. The court erred in overruling said demurrer.

There was no error in the refusal of the court to give the fourth charge requested by the defendant. There was testimony tending to show that it was a part of the duties of the plaintiff to ride down with the empty cars, and the mere fact that he had been out of the mine for the purpose of getting his dinner did not change the fact that he was on duty in going down with the empty cars afterward. — Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 116 (7th h. n.), 127, 42 South. 96.

The remark quoted by counsel for appellant, from the case of Wilson v. L. & N. R. R. Co., 85 Ala. 273, 4 South. 701, referred to the question of contributory negligence of an employe in descending from the top of a car for his own purpose, and not for any necessary purpose, by way that was obviously dangerous, when there was a safe way open to him.

The judgment of the court is reversed, and the cause remanded.

Dowdell, Anderson, and Denson, JJ., concur.

Rehearing

*189On Rehearing.

PER CURIAM. — The majority of the court, consisting of DENSON, McOLELLAN, MAYFIELD, and SAYRE, JJ., hold that the amended count was sufficient. The case is accordingly affirmed.

Dowdell, O. J., and Simpson and Anderson, JJ., dissent.