| Ala. | Dec 17, 1908
All of the counts of the complaint, except the fourth and fifth, were eliminated; the trial court sustaining demurrers thereto. At the request of the defendant, in writing, the court gave, in respect to the fifth count, the general affirmative charge in its favor; so that it is not only unnecessary, but would he inappropriate here, to. consider assignments of error based upon the judgment of the court overruling demurrers to the fifth count, and sustaining demurrers to pleas addressed to that count, notwithstanding these assignments are insisted upon in brief of appellant’s counsel.
It is argued in the brief of appellant’s counsel that the court erred in overruling the demurrer to the fourth count of the complaint. That ruling is not embraced in the assignment of errors; so we pass the argument by without consideration. — H. A. &. B. R. R. Co. v. Miller, 120 Ala. 537, 24 South. 955; Smith’s Case, 130 Ala. 95" court="Ala." date_filed="1900-11-15" href="https://app.midpage.ai/document/smith-v-state-6519042?utm_source=webapp" opinion_id="6519042">130 Ala. 95, 30 South. 432.
The fourth count shows that the defendant was operating an ore mine in Jefferson county, and that the plain
Plea 4 was held bad on demurrer. It alleges as a defense that: “Plaintiff came into defendant’s mine and entered a portion thereof, the operation of which defendant, had let under contract to one Hamilton. Plaintiff was an employe of said Hamilton, and the defect in the mine of which plaintiff complains arose and was caused by the operation of said portion of said mine by said Hamilton after plaintiff was invited to enter the mine. Plaintiff was injured in said portion of said mine operated by said Hamilton. Wherefore defendant says it is not liable to plaintiff.” The plea does not aver that the defect was caused by negligence on the part of Hamilton, nor does it show that defendant had parted with the control of the part of the mine operated by Hamilton, nor that Hamilton was not operating it for the benefit of the defendant. All the allegations of the plea may be
The defendant OAvned and operated Fossil Mine, in Jefferson county. It made a contract Avith Kennedy & Hamilton, a partnership, to “work out” Avhat Avas known as “heading No. 47,” in said mine, at $25 a running yard for getting out the ore. The plaintiff was employed by Kennedy & Blamilton to work as a “mucker” in said mine at $2,25 a day, and he was so at work in said mine on October 3, 1905, when he received the injuries complained of. He was loading a car, at the time he Avas hurt, about 12 or 15 feet from the face of the heading. The cause of his leaving the face of the heading Avas that they were putting in a sump. “They had shot down some ore in putting in the sump, and plaintiff Avas engaged in clearing it up.” The plaintiff explained that a “sump” is a place where they drained the water from the mouth of the slope. It is a hole in the floor of the mine. While he was thus engaged at Avork a large rock fell from the roof of the mine upon him. While it is true .that ’Kennedy & Hamilton Avere working a portion of the mines under a contract with -the defendant whereby they were mining ore therefrom for defendant at $25 per running yard, and plaintiff Avas Avorking therein as
It is obvious that the duty must vary according to the character of the danger, the nature of the premises, and the circumstances under which they are to be visited. In the present case, manifestly, the duty did not end when plaintiff entered the premises, because, forsooth, at that time they were in a reasonable safe condition. But, talcing into consideration the nature of the premises and the kind of work there carried on, in measuring defendant’s duty, it may be said to be a matter of common knowledge that the conditions in an ore mine, with respect to the safety of the operatives, are ever and constantly changing — indeed, that every stroke of the pick may be an appreciable factor in the modification of such conditions. This is illustrated by the evidence in the instance case, which tends to show that it was the duty of defendant’s servants to inspect the roof of the mines as work progressed, and to timber the roof as occasion required to prevent it from becoming dangerous. In fact, the evidence shows that defendant kept a negro man whose duty it ivas to' timber the roof when necessary to prevent it from falling, and that defendant’s “mine captain” had, a week or two before plaintiff ivas injured inspected the very roof a part of which fell upon plaintiff; and this mine captain testified that whenever any timbering was to be done the company did it. So it may be accurately and truly stated that the extent «f the owner’s responsibility, in this respect, depends upon the nature of the premises and the character of the work required there, and with what frequency inspections should be made is, generally speaking, a question for the jury. — 1 Labatt’s Master & Servant, § 158.
If it was a duty the defendant owed plaintiff to inspect the roof and keep same in a reasonably safe con
The evidence certainly is not. free from inferences adverse to the defendant in respect to its duty to keep the mine safe — that it was in an unsafe condition; that the defendant' knew of its unsafe condition, and was negligent in not remedying the defect; and that plaintiff did not know it was unsafe. In this state of the evidence, the general affirmative charges requested by the defendant, and refused, were properly refused; and the case was properly left to the determination of the jury.
Affirmed.