Sloss-Sheffield Steel & Iron Co. v. Triplett, 58 So. 109

Sloss-Sheffield Steel & Iron Co. v. Triplett

58 So. 109 | Ala. Ct. App. | 1912

de GRAFFENRIED, J.

1. It is evident from the first count of the complaint that the appellant, in the operation of its coal mine, drew the coal from its mine by means of tram cars operated by a. cable or rope. It is a matter of common knowledge that, in mines so operated, the tram cars are let down into and drawn from the mines by means of cables attached to hoisting machines, called “drums.” We think that the first count of the complaint shows with sufficient certainty that the appellee was injured by the cable which drew the tram cars, and that the injury was due to the fact that appellant had not provided a proper or sufficient stay to keep the cable in its usual and proper position.

2. Being in doubt as to whether count 4 of the complaint was subject to the demurrer interposed to it by the appellant, this court certified that question to the Supreme Court, and that court, in an opinion rendered on the certification, held that said count was not subject to the grounds of demurrer assigned to it by appellant.—Sloss-Sheffield Steel & Iron Co. v. J. C. Triplett, 176 Ala., 58 South. 108.

3. There does not seem to have been any dispute in the evidence about the fact that the post which had been placed by the side of the passageway, near the entrance to the mine, was insufficient to hold the cable in its. proper place, in case of a wreck or a sudden stoppage of the machinery used in bringing the tram cars from the mine. It is therefore evident that, if the question propounded by the appellee to the witness McKay, and made .the basis of the fifth assignment of error, was improper, the answer of the witness to the question was of no injury to appellant.

In the present case, there was evidence tending to show that the track on which the trams were operated was on the side of a passageway used by the employees

*327of the defendant, and that the post was erected between the passageway and the track upon which the trains were run. The post, which seems to have stood six feet above the ground, kept the cable by which the trams were operated upon the tram track, except in cases of wrecks or sudden stoppages. In cases of wrecks or sudden stoppages, the cable would fly over the post onto the passageway, and in such instances was a source of danger to persons on the passageway. While the post may have been erected by the appellant solely for the purpose of preventing the cable from pulling the cars from the track, nevertheless the post afforded, under the evidence, some protection as a stay to keep the cable off the passageway; and there was no evidence tending to show that the appellant provided any means, other than the post, as a stay to keep the cable in its proper situation. The appellant was under the duty of keeping its Avays, works, and machinery in a reasonably safe condition; and as the appellant used the post as a stay to hold the cable in its proper position, and provided no other means for that purpose, it does not matter whether the post was erected solely for the purpose of preventing the cars from being pulled from the track by the cable or not. It was the use of the post as a stay which fixed its character as such under the facts of this case. Section 3 of the opinion of the Supreme Court in Richmond & Danville R. Co. v. Bivins, 103 Ala. 142, 15 South. 515, is in perfect accord with the above views. The eleventh and fifteenth assignments of error were not well taken.

4. The Avritten charges Avhich the court refused, at the request of appellant, to give to the jury, and which are made the basis of the eighth and fourteenth assignments of error, were fully covered by charges which the court gave to the jury at the appellant’s request.

*3285. The evidence tends to show that the appellee, under the direction of a superior, erected the post on the edge, of the tramway, and that it was used by the appellant as a stay to prevent the cable from leaving the tramway track and getting into the passageway. The appellee knew that the post was insufficient as a stay on all occasions, and he saw John Sheff, the track boss, who had general charge of matters, and told him of the dangerous condition of the stay, and Sheff said “they would have it fixed.” About three weeks or a month after that time, the appellee was injured, while engaged in the performance of his duties as an employe of the appellant, because, upon a sudden stoppage of a tram car, the cable flew over the post, striking the appellee and inflicting the injuries, the subject of this litigation. At the time of the injury, the appellee ivas standing near the post, and he knew that the post alone, in case of a sudden stoppage of the car, was not sufficient to keep the cable in its proper position; but he had a right to rely upon the statement of Sheff that “they would have it fixed,” and to presume that the danger which he had previously pointed out, had been, in some way, provided against. While there was evidence tending to show that the appellee, from the fact that he was constantly about the mine, may have known that the danger, above referred to, had not, in fact, been provided against, nevertheless his evidence shows that he had not been required to work at the place where the injury occurred between the day when Sheff said “they would fix it” and the day on which the injury occurred. It was, therefore, in our opinion, for the jury to say, under all the evidence in the case, whether the appellee, in remaining at the place where he was injured, was guilty of contributory negligence.

*329We are also of Opinion, for the above reasons, that the issue of assumption of risk vel non was, under the evidence, also a question for the determination of the jury.—Going v. Ala. Steel & Wire Co., 141 Ala. 537, 37 South. 784. The trial court therefore properly refused the written charges requested by appellant, instructing the jury that, under the evidence, they could not find for the plaintiff upon the first or fourth counts of the complaint. The assignments of error, not above discussed, are not insisted upon.

There is no error in the record, and the judgment of the court below is affirmed.

Affirmed.