Opinion
6 Div. 990.
April 22, 1920.
Appeal from Circuit Court, Walker County; J. J. Curtiss, Judge.
Silberman Hoskins and Lange Simpson, all of Birmingham, for appellant.
Where the evidence shows that the defendant requires its employees to use a mining appliance, which resulted in leaving a dangerously large section of roof unsupported, this was sufficient evidence of a defect to carry the case to the jury. 92 Ala. 300, 9 So. 252, 25 Am. St. Rep. 47; 100 Ala. 187, 14 So. 175; 178 Ala. 515, 59 So. 445. The furnishing of such machinery constitutes a defect under the Employers' Liability Acts. 141 Ala. 479, 37 So. 789; 178 Ala. 554, 59 So. 498. Defendant superintendent was guilty of negligence in instructing Lamato to work thereunder. Defendant was not entitled to affirmative instruction on the pleas of contributory negligence and assumption of risk. 150 Ala. 356, 43 So. 561; 174 Ala. 593, 56 So. 539.
J. H. Bankhead, Jr., of Jasper, for appellee.
Where the employee injured is the one intrusted with the works, ways, etc., and undertakes that duty, he cannot complain. 133 Ala. 279, 32 So. 15. The court properly directed a verdict for defendant. 97 Ala. 181, 12 So. 103.
A sufficient outline of the issues and tendencies of the evidence in support thereof will appear in the statement of the case. As to whether or not sufficient proof was offered by the plaintiff to make out a case for submission to the jury upon either count need not be here determined, for the reason that the action of the trial court in giving the affirmative charge for the defendant may well be rested upon the fact that plea 14, setting up contributory negligence, was proven without dispute.
The undisputed evidence in this case discloses that it was the duty of plaintiff's intestate and his companion to make safe the roof of the mine, and that at this particular point the draw rock (the falling of which caused his death) was soft and liable to fall at any time — a fact well known to any experienced miner, and of which he had been repeatedly warned. The evidence also shows without conflict that, under such circumstances, the draw rock should first be pulled down and the coal afterwards removed. These were the instructions of the mine foreman, and the proof shows, as alleged in the plea, that plaintiff's intestate disregarded these instructions, and in this manner contributed to his death.
There was no objection by demurrer to plea 14. Issue was taken thereon, and every material averment thereof proven without conflict. The defendant was therefore entitled to the affirmative charge. Finding no error in the record, the judgment of the court below will be here affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.