Lead Opinion

After a judgment for the plaintiff, now appellant, had been reversed on a former appeal (203 Ala. 338, 83 So. 62), counts 10, 11, and 12 were added by amendment, and the present appeal asserts that the trial court erred in sustaining demurrers to said counts. Appellant's proposition is that, in order to comply with the statute, General Acts 1911, p. 500, § 38, persons operating coal mines in the state must keep near the entrance or in the mines timbers cut to meet every possible emergency that may call for the propping of roofs in the progress of mining operations. We held to the contrary on the former appeal, and find no sufficient reason for doubting that conclusion. We held then, and in Clark v. Choctaw Mining Co.,201 Ala. 465, 78 So. 372, in effect, that persons operating coal mines comply with the statute when they keep near the entrance or in the mines suitable timbers from which they may and do, upon notice from the miner designating number and kind, cut and deliver the props or other timbers needed. The trial court ruled in agreement what this court had previously ruled, and its rulings were free from error.

Affirmed.

All the Justices concur, except BROWN, J., who dissents.

Dissenting Opinion

In some of the counts of the complaint the plaintiff rests his right of action on the violation of the defendant of section 38 of the act of April 18, 1911, which provides:

"It shall be the duty of persons operating coal mines in this state to keep at a convenient place at or near the main entrance of the mine, or in the mines, a sufficient supply of props and other timbers useful for propping therein, of suitable lengths and sizes, for those working in such mines. It shall be the duty of those working in said mines who need props or other timbers to select and mark the same when needed for propping by them, designating on such props or timbers the place at which the same are to be delivered or give notice to the person whose duty it is to deliver or have the same delivered, of the number and kind of props or other timbers needed and of the place to which they are to be delivered. It shall then be the duty of the operator to promptly deliver or cause to be delivered such props or other timbers at the place designated." Section 38, Acts 1911, p. 514.

The first duty imposed by this statute is upon the mine operator, and that is "to keep at a convenient place, at or near the main entrance of the mine, or in the mine, a sufficient supply of props and other timbers useful for propping therein, of suitable lengths and sizes, for the workmen in said mine." Until the duty is met, the duty of selection imposed on the workman in the mines does not and cannot arise, and in complying with the duty of furnishing such timbers the operator must take notice of and anticipate the variations in the heights of the roof and the necessity for props of different lengths and sizes. Manifestly the duty here imposed is not met by keeping on hand material out of which props may be manufactured or made, but he must keep on hand — to use the language of the statute — "timbers useful for propping * * * of suitable lengths and sizes," not timbers that may be made into suitable timbers by being cut in two, cut off, spliced, or ripped. This construction is supported by the further provision that the selection of the props needed must be designated by marks placed on the props showing where they are to be delivered.

The holding on the former appeal is not supported by Clark v. Choctaw Mining Co., 201 Ala. 466, 78 So. 372. That case merely holds that the duty of the operator to deliver the props at the miner's place of work does not arise until there has been a selection and proper designation of the props needed, as required by the statute.

The cases from the Kentucky and Illinois courts merely hold that the mine operator or foreman cannot go over the head of the workman and select the props needed in his place of work; this duty and right being placed on the workman.

For these reasons, I do not concur in the construction given this statute on the former appeal, or in the opinion of the court in this case. *Page 80