65 So. 999 | Ala. | 1914
While plaintiff’s intestate was at work in defendant’s ore mine, a blast- in the adjacent entry or heading burst through the intervening wall or rib and caused his death. The complaint declared as for a breach of defendant’s common-law duty to furnish a safe place in which its servant, plaintiff’s intestate, might do the work for which he was employed, and contained also counts under the statute alleging that ■the rib was defective, in that it was too thin, while still other counts charged negligence in general terms against defendant’s superintendent or mine foreman. These last counts were defective, and the demurrer to them should have been sustained.—Woodward Iron Co. v. Marbut, 183 Ala. 310, 62 South. 804.
The court having ruled otherwise, these counts remained in the case. They stated a cause of action, though defectively, and the later action of the court in giving or refusing special instructions to the jury must be reviewed with reference to the issues raised by these counts and on the hypothesis that they were well pleaded.
It does not appear that any unusual or unnecessary amount of explosive was used, or that the circumstances of'the blast indicated any negligence in the conduct of defendant’s business, except that the rib had been left too thin to withstand the shock to which it was exposed. This condition of the rib resulted immediately from the fact that either plaintiff’s intestate or his coemployee in the adjacent entry, or possibly both of them, drove their headings unduly wide. This did not constitute an unsafe place within the common-law doctrine of the master’s duty in respect to furnishing his servant a safe place in which to do his appointed work, for the reason that the work in which intestate and his coemployee were engaged created the place itself and the defective
It Avas the duty of plaintiff’s intestate and of his co-employee in the adjacent entry to drive their headings straight fonvard and of uniform Avidth, to the end that a proper thickness of rib be left between them. The trial court instructed the jury that, if it was the duty of plaintiff’s intestate to dig the heading and leave the rib in proper and safe condition, then plaintiff could not recover on account of any defect in the rib. The alleged defective condition of the rib lay at the bottom of plaintiff’s case in each of the several aspects presented by the different counts, but the fact that the duty rested upon plaintiff’s intestate as hypothesized was not enough of itself to conclude the case against plaintiff. A like duty rested upon the coemployee in the adjacent entry, and the safety of the rib depended upon the co-ordination of their efforts. Due regard for the safety of these employees may have required—doubtless did require—that responsibility for the condition of the rib be, not put upon plaintiff’s intestate alone, nor be distributed in its entirety betAveen him and his coemployee, but that expert advice and diligent superintendence be accorded them to the end that the rib between them be left in a safe condition as the work progressed.
Whether plaintiff’s intestate was an employee of defendant or an independent contractor is of importance in the case, but has not been discussed in the briefs. Appellant assumes that intestate was an independent contractor; appellee assumes that he was an employee. Our opinion on the uncontradicted evidence is that intestate was an employee, and within the protection of the statute.—Tenn. C. I. Co. v. Hayes, 97 Ala. 201, 12 South. 98. The evidence here goes much further in explanation of the relations between intestate and defendant than did the evidence in Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118, 62 South. 721. Other issues of fact were for the jury. As the pleadings must be recast, we have not deemed it necessary to go further in consideration of the errors assigned.
Affirmed.
