Alabama Consol. Coal & Iron Co. v. Heald

• Citation: 53 So. 162,168 Ala. 626
• Parties: ALABAMA CONSOL. COAL & IRON CO. v. HEALD.
• Decision Date: 26 February 1910
• Court: Supreme Court of Alabama

53 So. 162

168 Ala. 626

ALABAMA CONSOL. COAL & IRON CO. v. HEALD.

Supreme Court of Alabama

February 26, 1910

Upon Rehearing, June 30, 1910.

Appeal from Circuit Court, Etowah County; John W. Inzer, Judge.

Action by Pat H. Heald, as administrator, against the Alabama Consolidated Coal & Iron Company, for the death of his intestate. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Dowdell C.J., dissenting in part.

The rulings as to pleadings and evidence appear with sufficient certainty in the opinion. For the complaints in the case, see former report thereof in 154 Ala. 580, 45 So. 686. Count 5 added by way of amendment is substantially the same as count 3, set out in the former appeal.

The charges referred to in the opinion as given for the defendant are as follows:

(48) "The court charges the jury that the plaintiff in this case cannot recover for any negligence except that of J. G Dunn, and unless they are reasonably satisfied from the evidence that Dunn failed to exercise such care and prudence as a person of ordinary care and prudence would have exercised under like circumstances, and that such failure on the part of Dunn proximately caused Heald's death, then their verdict must be for the defendant."

(51) "The court charges the jury that all the law of Alabama requires of Dunn as defendant's agent was to exercise such care to guard the safety of plaintiff's intestate as a man of ordinary prudence would have exercised under like circumstances, and if the jury believe from the evidence that a man of ordinary care and prudence, situated as Dunn was on the night of Heald's death, would have considered it safe to go into defendant's mine, then their verdict must be for the defendant, even though Dunn ordered Heald to go into the mine, and also told him at the time that it was safe for him to do so."

Charges refused to the defendant:

(10) "The court charges the jury that if plaintiff's intestate created or caused the bad air in defendant's mine by running the air compressor, of which he was in charge, hot, and thereby rendering the compressed air sent into the mine foul and impure, and said intestate, after being warned of the danger of doing so, went into the mine and traveled therein a distance of about one-half mile to the point where he met his death, with opportunity to test the air in the mine on his way to said point, and notwithstanding this plaintiff's intestate negligently went to said point, and these acts, if plaintiff's intestate did them proximately contributed to produce his death, plaintiff cannot recover."

(16) "The court charges the jury that if plaintiff's intestate created or caused the bad or foul odor in defendant's mine by running the air compressor hot while he was in charge thereof, thereby rendering the compressed air foul and impure sent into the mine, and said intestate after being warned of the danger of doing so, went into the mine, and traveled therein a distance of about one-half mile to the point where he met his death, with the opportunity to test the air in the mine on his way to said point, and his opportunity for knowing or ascertaining the condition of the air in defendant's mine was superior to that of Dunn, and notwithstanding this plaintiff's intestate negligently went to the point in said mine where he met his death, and thereby proximately contributed to produce his death, then plaintiff cannot recover in this action."

(13) "The court charges the jury that, if they are reasonably satisfied from the evidence that the matters set up in defendant's amended plea 14 are true, then their verdict must be for the defendant."

(18) "The court charges the jury that, if the death of Heald was proximately caused by the joint negligence of said Heald and the defendant, plaintiff cannot recover in this case."

(20) "The court charges the jury that the plaintiff cannot recover in this case if, under the evidence, it is merely a matter of conjecture, surmise, speculation, or supposition whether Heald's death was or was not due to the negligence of the defendant, or of some employé for whose acts or omissions defendant was responsible."

(21) "The court charges the jury that the plaintiff cannot recover in this case if the evidence in it is as consistent with the absence of defendant's negligence as it is with the existence of such negligence."

(11) "The court charges the jury that, if they are reasonably satisfied from the evidence that plaintiff's intestate knew and appreciated the danger of going to the point in defendant's mine where he met his death, then plaintiff cannot recover in this case, and their verdict must be for the defendant, although the jury further believe that Dunn ordered him to go to said point, and told him he thought it would be safe for him to do so."

(9) "The court charges the jury that, if they are reasonably satisfied from the evidence that Heald went to a point in defendant's mine where he met his death with knowledge of the danger arising to him from such undertaking plaintiff's intestate assumed the risk, and plaintiff cannot recover in this action."

(5) "The court charges the jury that if they believe from the evidence that the foul air in defendant's mine was the proximate cause of Heald's death, and not any order that might have been given by Dunn, their verdict must be for the defendant."

(4) "The court charges the jury that in ascertaining whether Dunn was negligent in giving Heald the order to go into the mine, if they find such order was given, the jury can consider, together with all the other evidence in the case, the following facts and circumstances, if they find such facts and circumstances to exist: That the mine had been operated for a long time prior thereto without accident or injury to those working in the mine on account of gas or foul air, and that Horace Williams, an old, experienced miner, had just come out of the mine, and voluntarily went back into the mine with Heald to continue work, and that Heald himself, who had, prior to that night, worked in defendant's mine for several months, and who had been on the ground up to the time of his going into the mine, did not object to or protest against going into the mine, and if the jury believe that Dunn exercised such care and prudence in the premises as a person of ordinary intelligence and prudence would have exercised under like circumstances, then their verdict must be for the defendant."

(22) "The court charges the jury that in determining whether or not Dunn was guilty of negligence in ordering Heald into the mine, if he did order him there, they will look to the fact, if it be a fact, that Heald was acquainted with the situation there that night, and knew that parties had come out of the mine on account of the air, and to the further fact, if it be a fact, that Heald went into the mine without protest or objection of any kind, and to the further fact, if it be a fact, that Horace Williams, an old, experienced miner, went into the mine at the same time with Heald, without orders from anybody and voluntarily; and if, from these facts, together with all the other evidence in the case, they are reasonably satisfied that Dunn exercised ordinary care and prudence when he gave the order, their verdict must be for the defendant, although Heald lost his life in going into the mine in obedience to the order."

(26) "The court charges the jury that unless Dunn, at the time he is said to have ordered Heald to go into the mine, knew or had reason to believe that the compressed air sent into the mine had become impure by becoming heated, then their verdict must be for the plaintiff."

(1) "The court charges the jury that, if they believe from the evidence in this case that plaintiff's intestate had, as compared with Dunn, an equal or better opportunity to see and know the extent of the danger of going into the mine, then said intestate would have no right to rely upon any assurance of safety on the part of said Dunn, if they find such assurances were given or made, and if, under such circumstances, plaintiff's intestate voluntarily went into said mine, then there can be no recovery in this case."

(2) "The court charges the jury that in this case there can be no recovery by the plaintiff unless the jury find that Dunn was guilty of negligence which proximately caused the death of plaintiff's intestate, and if the jury believe from the evidence that said intestate had an equal or better opportunity to see and know the extent of danger of going into the mine than said Dunn had, then plaintiff cannot recover."

(3) "The court charges the jury that if they believe from the evidence that plaintiff's intestate was employed to work on the outside of defendant's mine, and his duties did not require him to go into the mine, and said intestate had, as compared with said Dunn, an equal or better opportunity to see and know the extent of the danger of going into the mine, then their verdict must be for the defendant, even though they believe that Dunn ordered him to go into the mine, and told him that at the time of the order that he thought it was safe to go into the mine."

(24) Set out in the opinion.

(27) "If you believe from the evidence that at the time Dunn gave the order, if you find that he gave it, defendant's mine did not contain a large and dangerous quantity of suffocating gas, but that such gas was confined in the iron pipes carrying the compressed air into the mine, then you cannot find for the plaintiff in this case."

(28) "The court charges the jury that if they are reasonably satisfied from the evidence that Heald met his death by foul air or gas escaping from the pump after he had reached it and not because the mine contained a large and dangerous...