The Montgomery advertiser., 1909-03-07

TENNESSEE COAL IRON & R. R. Co
 V BURGESS.
 Damages for personal injury while on
 premises by invitation. (Decided
 Dec. 1T, 1s0s.-47 South. 1o2so
 1. Appeal and error: hamless error; ruling on pleading.-Where count m the complaint was charged out at the request of the defendant, errors as- signed to the overruling of demurrers to the count, and as to sustaining de- murrers to pleas addressed thereto. are harmless, and will not be considered although insisted on in brief.
 3. Same. Necessity for assignment.- Errors not assigned will not De con sidered although insisted on
 8. Mines and minerals; liability tn- cident to working: pleading; assump- tion of risk-In an action by licensee for injuries received resulting from d rock falling from the roof of the mine. . plea alleging that plaintim knew or Che defect in the mine of which he complains. and of the danger arising therefrom, and with such knowledge remained in said mine. Is bad TOT fall ing to ailege that he acquired such knowledge a sufficient length of time before the injuries complained of. to have avoided the danger
 l. Same-A plea in defense of an action for injuries resulting to H. censee from the fall of rock from the roof of defendants mine. which alleges that the part of the mine in which plaintiff was injured was left to a third person, that plaintiff was an employe of such third person. and that the defect complained of was caused by the operation of that part of the mine by such third person, after plain tiff was invited to enter the mine, and that plainttin was injured in thatof the mine operated by such third person. Is bad for falling to aver that the de- feet was caused by the negligence of the third person, and for failing to show that defendant had parted with the control of that part of the mine op- erated by the third person, or that such third person was not operating 1t for the benefit of defendant; and for the further reason that all the matters could properly be shown under the general issue. which was pleaded.
 6. Same; licensee.--Where cor poration Is having a portion of the mine worked under a contract by the terms of which the contractors mine the ore at a stated price for the owner, and the owner does not lose control of the mine. and still has the duty of in- specting and keeping the mine in a safe condition. an employe of the con- tractor is not a trespasser, nor a mere licensee, but Is there by invitation of the owner who owes him to exercise ordinary care and prudence to see that the mine is reasonably safe.
 G. Same: inspection; jury qpestion.- Since the extent of the owners re- sponsibility as to inspecting the mine for the beneft of licensees. and those there by invitation, depends upon the character of the work required the frequency with which inspection should be made. becomes question foI the jury.
 I. Master and servant; independent contractors: precautions required e Where plaintiff was an empioye of the contractor working the mine for tho benefit of the owner, and it was tht owners duty to inspect the mine ant keep 1t in a reasonably safe condition and there was negligence in this re spect on the part of the owner. fl consequence of which plaintiff was in jured, the fact that the contractor wal an independent contractor. and tha plaintiff was in his employ. at tn time Of his injury Is immaterial t plaintiffs right of recovery.
 Appeal from Birmingham City Cour,
 Heard before Hon. IT. A. Sharpe.
 Af1rmed. Opinion by Denson, J.
 Tyson. c. J.. Simpson and Anderson JJ., concur.
 HUTTo V. sToUGH & HoRNsBY. Action for Brokers Commissions
 (Decided June 30, 1s0s.--47 South
 1o31.-Rehearing Denied Dec. 24
 19oS).
 1. Brokers; com missions; whel earned.-A broker employed to sel land is entitled to his commission whel he procures a purchaser ready, abl and willing to purchase on the term
 
 ment.
 2. Same; revocation of authority: jur questionable evidence in this cas stated and examined, and 1t is hel that under it, the question of whethe or not plaintiffs agency to sell tn land was revoked before the sale, wa a question to be decided by the jury.
 8. Same; commissions; when earnet Where the sale was interrupted a the request of the owner to hold tn proposition for few days, so as