Opinion
6 Div. 830.
January 15, 1920. Rehearing Denied February 5, 1920.
Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.
Stokely, Scrivner Dominick, of Birmingham, for appellant.
It was the duty of plaintiff's intestate to keep the roof of the mine in good condition, and no negligence is attributable to the defendant in regard to the roof. 183 Ala. 127, 62 So. 536; 171 Ala. 216, 55 So. 93; 133 Ala. 279, 32 So. 15; 166 Ala. 482, 52 So. 86. Proof of accident, without proof of negligence, is not sufficient to make out a prima facie case. 76 So. 17; 183 Ala. 132, 62 So. 757. The demurrers to the count should have been sustained. 163 Ala. 244, 50 So. 926; 150 Ala. 361, 43 So. 579; 164 Ala. 131, 51 So. 377; 197 Ala. 541, 73 So. 97; 71 So. 685.
Harsh, Harsh Harsh and Erle Pettus, all of Birmingham, for appellee.
The complaint was sufficient. 57 Ala. 144; 121 Ala. 50, 25 So. 793, 77 Am. St. Rep. 17; 125 Ala. 237, 28 So. 438, 50 L.R.A. 620; 149 Ala. 474, 42 So. 1019; 168 Ala. 619, 53 So. 76; 7 Ala. App. 462, 61 So. 22. If the master fails to furnish proper or suitable means with which to do the work in a proper way, and a servant is injured in an attempt to do the work with the means at hand, and is injured by reason of not having proper tools, the injury is a proximate result of the failure to furnish such tools. 139 Ala. 425, 36 So. 181; 193 Ala. 639, 69 So. 76; 182 Ala. 656, 62 So. 104; 144 Ala. 280. 40 So. 211; 92 Ala. 218, 9 So. 276; 100 Ala. 451, 14 So. 287; 183 Ala. 326, 62 So. 859; 178 Ala. 554, 59 So. 498; 141 Ala. 479, 37 So. 789; 199 Ala. 231, 74 So. 360.
A condensed paraphrase of the several counts of the complaint, showing their essential features, may be stated as follows: (1) It was defendant's duty to furnish ladders, or similar appliances, for the use and safety of its workmen while pulling down or removing loose rock (which needed to be so treated) from the roof of its mine; (2) defendant negligently failed to furnish such ladders or appliances; and (3) as a proximate result of that failure a large rock fell from the roof of the mine upon plaintiff's intestate, while he was doing the work he was employed to do, viz. propping or preparing to prop said rock.
Several grounds of demurrer aptly challenge the sufficiency of the several counts, in that, on the facts alleged, they show no proximate causal connection between defendant's negligent omission to furnish a ladder for the safe removal of the rock, and the falling of the rock on intestate while he was engaged in propping it up.
Complaints charging negligence must allege facts showing a proximate causal connection between the negligence charged and the injury complained of, or, if no such facts are shown, or they are equivocal as to the inference of causation, they must expressly charge the causation. Such a charge, though made as the mere conclusion of the pleader, is held to be sufficient. Merriweather v. Sayre M. M. Co., 161 Ala. 441, 49 So. 916.
But, where facts are shown which contradict the averment of proximate causation, the latter, being a mere conclusion, will be disregarded on apt demurrer; that is to say, when the facts and circumstances alleged generate a prima facie presumption that there was no proximate causal connection between the injury suffered and the negligent act or omission charged, the mere averment of such connection as a conclusion of the pleader is not sufficient as against demurrer. See Southern Ry. Co. v. Shook, 150 Ala. 361, 43 So. 579; Thomas, Admr. v. S.-S. S. I. Co., 144 Ala. 188, 39 So. 715; Ritch v. Kilby, etc., Co., 164 Ala. 131, 51 So. 377.
Prima facie, the complaint here exhibited shows that intestate was injured in a way and under circumstances that are wholly foreign to defendant's alleged negligence in failing to provide a ladder for some person to use for safety in pulling down loose rock. Having thus stated the quo modo of the injury, it was necessary for the pleader to rebut the obvious presumption of non-causation by averring facts, and not merely a conclusion, showing a proximate sequence of cause and effect from the negligent omission to the injury.
The argument of plaintiff's counsel is that intestate may have designed to pull down the rock, knowing or concluding that it should be removed, but that, having no ladder or other similar appliance available, he was driven to the expedient of propping it up instead, and thereby proximately driven to his death. If such assumed facts are sufficient to support the theory of proximate causal connection, which we need not now determine, they ought at least to have been averred in the complaint. We hold that the demurrers to counts 8, 9, and 10, aptly challenged their sufficiency in this regard, and that they were well taken and should have been sustained. In overruling them the trial court committed prejudicial error.
The conclusion is still clearer, on the evidence adduced, that the defendant was entitled to have the general affirmative charges given to the jury in its behalf as requested. There was not a particle of evidence to lend support to the theory, essential to plaintiff's case, that defendant's omission to furnish a ladder or other appliance by means of which the intestate might have safely pulled down this rock, was the proximate cause, in a legal sense, of his death as it actually happened. It does not appear that he even suspected that the rock was so loose and dangerous that it was his duty to remove it, nor that he ever had the remotest intention or wish to do so. Such an intention or conclusion on his part, and his compulsory choice of propping the rock, if relevant, must be inferred from the evidence, and there was not a single fact in evidence to raise those inferences above the realm of idle and unauthorized conjecture. Indeed, the evidence affirmatively refutes them, so that defendant's negligent omission, if conceded, does not appear to have even furnished the condition, or given rise to the occasion, by which the injury was made possible — a form of causation which the law regards as too remote for judicial cognizance. Garrett v. L. N. R. R. Co., 196 Ala. 52, 71 So. 685.
Other questions need not be considered. For the errors noted, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.