123 So. 201 | Ala. | 1929
Plaintiff's son, a minor 20 years of age, was killed while working in defendant's mine. He was awarded compensation under our workmen's compensation statute (Code 1923, §§ 7543-7597), and the only question here presented is whether or not the minor met his death by an accident "arising out of and in the course of his employment." Upon this question, the burden of proof rested upon the plaintiff. Ex parte Little Cahaba Coal Co.,
Plaintiff's son was employed as a mule driver engaged in pulling empty cars. "He had no business to handle the loads. * * * The loads are handled by separate crews * * * called trammers. * * * There is danger attached to tramming cars * * * it doesn't require any particular skill for a person to be a trammer." The foregoing statement of the mine superintendent is without dispute.
Plaintiff's witness Wallace also testified: "The mule drivers don't tram, they don't allow them to tram; they get orders not to tram."
The evidence further tends to show that at the time of the accident plaintiff's son had stepped aside temporarily from his duties as mule driver and was helping the trammer.
The evidence has been carefully read by the court in consultation, and we find no testimony justifying any reasonable inference therefrom that his change of work from that of mule driver to trammer was authorized either expressly or impliedly or was with the knowledge or consent or acquiescence of any one in charge of the work at defendant's mine. We think the case comes within the influence of Cohan Bullard v. Cullman Heading Co. (Ala. Sup.)
In view of this authority, any detailed consideration of the numerous cases cited in brief from other jurisdictions is unnecessary. The authorities, however, appear to be in uniform harmony with the holding of the Bullard Case, supra, which, as there stated, is but the "express requirement of the law." The case of Majestic Coal Co.,
We have not overlooked the fact, argued by plaintiff, that the regular trammer was not at work, but another employé, inexperienced, was "tramming" in his stead, but the evidence is not controverted that the work required no particular skill, although it was dangerous. Nor have we neglected to consider the statement of the witness Wallace that "there was a trip standing at the side track, and somebody told the boy to help bring it out." The evidence is without conflict that the work of the mule drivers was confined to certain places and they were not authorized to tram, but ordered to the contrary. Clearly, this general statement of the witness could not be considered as justifying a reasonable inference that any one authorized to that end had directed plaintiff's son to engage in such work. He must be held, therefore, to have voluntarily undertaken this other work. 1 Bradbury's Workmen's Compensation, pp. 458, 459. Nor was there any peril presenting action by an employé in emergency. Ex parte Little Cahaba Coal Co.,
We have carefully considered the cases cited by plaintiff's counsel, among them Wendt v. Industrial Ins. Commission,
But, in the instant case, the evidence warrants no such conclusion, for here the employé voluntarily assisted another in a separate and distinct work which in no manner facilitated his own work, and as to which he was not authorized to interfere.
In the case of Miner v. Franklin County Tel. Co.,
We have repeatedly stated our view that this statute should be liberally construed to effectuate its beneficent purpose, but the courts are without authority by such construction to extend the field of its operation beyond the limits as clearly defined by the lawmaking body. A proper application of the statute to the uncontradicted facts here presented must result in a reversal of the judgment rendered.
Writ awarded; reversed and remanded.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.