Clinton Mining Co. v. Loveless
Clinton Mining Co. v. Loveless
Opinion of the Court
A condensed paraphrase of the several counts of the complaint, showing their essential features, may be *79 stated as follows: (i) 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 he 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 plaintiffs 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.
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 South. 579; Thomas, Admr. v. S.-S. S. & I. Co., 144 Ala. 188, 39 South. 715; Ritch v. Kilby, etc., Co., 164 Ala. 131, 51 South. 377.
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, ánd 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.
Other questions need not be considered. For the errors noted, the judgment will be reversed, and the cause remanded.
Beversed and remanded.
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