The case was submitted to the jury on count B of the complaint as amended. The right of action stated in this count is rested upon the negligent failure of the defendant to furnish props after they had been properly designated and marked, as required by section 38 of the act approved April 18, 1911, entitled "An act to regulate the mining of coal in Alabama." Acts 1911, pp. 500-514.
It is urged that the holding on the former appeal that it was not essential to the plaintiff's right of action that he aver and prove that he was an employé of the defendant is unsound and should be overruled.
This statute is not dealing with the relation of master and servant, but with the subject of mining coal, and it provides that "it shall be the duty of those working in said mine who need props or other timbers to select and mark the same when needed for propping by them," etc.; and when so marked and designated "it shall be the duty of the operator to promptly deliver, or cause to be delivered, such props or other timbers at the place designated." The terms "those working in the mines" are clearly comprehensive enough to include, and do include, all workers in the mine who are rightfully there at work, with the consent or on the invitation of the operator. We therefore adhere to the construction given to this statute on the former appeal for the reasons stated in the authorities. Corona Coal Iron Co. v. Spann, 203 Ala. 194, 82 So. 444; Stith Coal Co. v. Harris, 14 Ala. App. 181, 68 So. 797.
The defendant's plea of contributory negligence numbered 14 was subject to the objection pointed out by the seventeenth and eighteenth grounds of demurrer, and the demurrer thereto was properly sustained. Bedgood v. T. R. Miller Mill Co., 202 Ala. 299,80 So. 364.
P. R. Savage, a witness called by the defendant, testified:
"I had a conversation with him [plaintiff] at the mouth of the mine a short time after he was hurt, about the time he was brought out, in which he said in substance that he was trying to pull the rock down with a pick and it fell on him."
On cross-examination witness further stated, without objection:
"I had a conversation with him after that. The time of which I am talking about to Mr. Fite was when he was brought out of the mine *Page 209 with his leg broke, and the second conversation was at the blacksmith shop. * * * I think in the second conversation I had with him, I recalled to him that he had made that statement about trying to pull down the rock and he denied it."
After the witness had testified that the conversation last referred to occurred some seven or eight months after the injury, the witness was asked by plaintiff's counsel on cross-examination:
"And he told you that he didn't make that statement, didn't he?"
The defendant objected to this question on the ground, among others, that it called for a self-serving declaration. This objection was overruled, and the witness answered:
"He said if he made it he forgot it. He denied making the statement."
Defendant moved to exclude the answer, which motion was overruled.
The bill of exceptions will be construed most strongly against the appellant. Massey v. Smith, 73 Ala. 173; Dudley v. Chilton County, 66 Ala. 593; 2 Mayf. Dig. 488, § 118. And if it be conceded that this ruling was error, when the bill of exceptions is so construed, it appears that the witness had previously testified to these questions without objection, and the ruling of the court appears to be without injury; for, if the objection to the question had been sustained, and the answer excluded, there would have been left before the jury this testimony in substance at least.
The plaintiff offered evidence tending to show that on the morning of the day of the injury he marked and set apart timbers, as required by the statute and the rules of the mine, to be delivered at plaintiff's place of work; that he was injured in the afternoon, about 3 o'clock, nine hours later, and the timbers had not been delivered up to the time of his injury. The witness Hargrove, offered by the defendant, testified:
"I saw the timbers being taken in there that morning. * * * They were going in as I was coming out. * * * It was somewhere between 9 and 10 o'clock that morning when I saw them going to 13 right. I was in there after I met these timbers and before the injury. There were timbers unloaded when I went back in there before the injury at 13 right."
In view of the testimony of this witness, it was permissible for the plaintiff to show in rebuttal that the timbers were not delivered until after the injury, and after the plaintiff had been carried out of the mine, not, of course, to show anterior negligence as an independent fact, but in contradiction of the testimony of the witness Hargrove. Bedgood v. T. R. Miller Mill Co., supra.
The evidence tends to show that, while the plaintiff was cutting coal in the mine at the place designated "two face 13, right," a rock fell from the roof upon the plaintiff inflicting the injuries for which he claims damages. The rock which fell upon him was what is known in mining parlance as a "horseback or roll." The plaintiff was performing the duties of "shift man," and, while the evidence shows that it was not his general duty to look after the roof of the mine and make it safe — this duty not arising unless he was specially ordered by someone in authority to do so — yet there was evidence tending to show that it was a part of his duty to cut the loose coal at the "face" after a shot was made and to make the place safe for the machine man, so that the coal would not fall on the "scrapper." There was also evidence tending to show that when "a horseback or roll" is encountered in the work the rules require that the rock be sounded, and if it sounds unsafe the rock must be pulled down, but if it sounds safe the rule requires the rock to be propped or timbered, if it can be done, so as to guard against the elements of danger attending the roof affected with such rock. The evidence further shows that the rock was sounded by the plaintiff before he proceeded with the work and it "sounded safe," that it was so situated that it could have been propped or timbered and made safe if the timbers had been available, but that the timbers designated had not been delivered and no timbers were available for making this rock safe. The evidence further tended to show — and it was for the jury to so find — that the danger was not so imminent or obvious as that a reasonably prudent person, situated as plaintiff was, would not have proceeded with the work, and plaintiff in undertaking to remove the loose coal from the "face" that had been left by the shot, as was his duty to do, was injured by the rock falling upon him.
In view of these phases of the evidence, it cannot be said as a matter of law that there was no proximate causal connection between plaintiff's injuries and the negligence of the defendant in failing to deliver the props or timbers at plaintiff's place of work, and hence the affirmative charge requested by the defendant was properly refused. Amerson v. Corona Coal Iron Co., 194 Ala. 175, 69 So. 601; Southern Ry. Co. v. McGowan, 149 Ala. 440, 43 So. 378; Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 So. 700.
On the same hypothesis charges 7, 8, 18, 21, 22, 29, 30, 32, 33, 34, 47, 48, 49, 56, and 57 were properly refused. Southern Ry. Co. v. McGowan, 149 Ala. 440, 43 So. 378; Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 So. 700; Corona Coal Iron Co. v. *Page 210 Spann, 203 Ala. 194, 82 So. 444; Stith Coal Co. v. Harris,14 Ala. App. 181, 68 So. 797.
Charges 57 1/2 and 58 ignore the phases of the evidence tending to show that plaintiff was permanently incapacitated to do the class of work that he was engaged in doing before he received the injury, and were therefore properly refused.
Charges 24 and 52 were covered by charges 4, 5, 6, 11, 17, 23, 26, 50, 51, and 53, given at the instance of the defendant.
The court at the instance of the defendant gave the following special charges:
"(4) If you believe from the evidence that the danger of the rock falling could have been discovered by the plaintiff by proper examination, and he failed to make such examination of the same, you should find for the defendant.
"(5) If you believe from the evidence that the danger of the rock falling could not have been discovered by proper examination, you should find for the defendant.
"(6) It was the duty of plaintiff to examine the rock over the place where he was working."
After verdict for the plaintiff, defendant made motion for a new trial on the ground, among others, that the verdict was contrary to the law as given in these charges, and now insists that a verdict for the plaintiff under the evidence in the case could not be rendered without violating these instructions. We do not think this contention can be sustained. As heretofore stated, the evidence shows that the plaintiff did examine the rock, making the usual test, that it "sounded safe," but the rock was of such nature that it showed an element of danger unless it was properly timbered or propped. However, it was open for the jury to find that this danger was not so imminent or obvious that a reasonably prudent man, circumstanced as plaintiff was, would have abandoned his work, and, if this was true, he was not guilty of contributory negligence in proceeding without the props. The statute presupposes that such danger may arise, and its purpose in imposing a duty on the mine operator to furnish props is to afford the means of eliminating the danger. In the absence of such danger making the use of the timbers and props necessary, no causal connection can be shown between an injury resulting from a failure to furnish such props and the negligence on the part of the operator in failing to furnish them. To hold that when such danger arises, though not obvious or imminent, the workman must assume the risk of proceeding or abandon the work, or he is guilty of contributory negligence in proceeding with the work, would take the very life out of the statute and destroy its purpose, which is to protect human life.
This disposes of all questions presented in argument on the assignments of error, and, finding no reversible error, the judgment of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.