Bessemer Land & Improvement Co. v. Campbell

• Decision Date: 21 April 1899
• Citation: 25 So. 793,121 Ala. 50
• Court: Alabama Supreme Court
• Parties: BESSEMER LAND & IMPROVEMENT CO. v. CAMPBELL.

25 So. 793

121 Ala. 50

BESSEMER LAND & IMPROVEMENT CO. v. CAMPBELL.

Supreme Court of Alabama

April 21, 1899

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

This action was brought by Jasper N. Campbell, as administrator of the estate of Henry Reevers, deceased, against the Bessemer Land & Improvement Company, to recover damages for the alleged wrongful and negligent death of plaintiff's intestate, who was, at the time of his death, an employé of the defendant in its coal mine at Belle Ellen, Ala. The counts of the complaint upon which the cause was tried are sufficiently stated in the opinion, as are also the demurrers interposed to these counts. These demurrers were each overruled, and the defendant separately excepted thereto. The defendant pleaded the general issue, and, by special pleas set up as a defense the contributory negligence of the plaintiff's intestate, in that, after being notified of the fire in the mine, the intestate failed to use due diligence to escape from the mine, and was thereby killed. It was on these pleas that the trial was had.

The intestate was a coal miner in the coal mine of appellant at Belle Ellen, Ala., at the time he met his death. The mine of appellant consisted of a slope or main entry, which went into the ground at an angle from its mouth. On each side of this slope were headings or entries, running at right angles to the main slope. In each entry or heading were rooms driven at right angles to the heading, in which the miners dug coal which was hauled out of the heading in trams by mules, and there put on a cable or chain, and hauled on this cable or chain to the mouth of the slope by steam. Parallel to the main slope was an air course, driven at a distance of about 20 feet from the slope. At the place where this air course emerged to the surface was an air shaft, over which a fan was operated, and made to revolve by steam power. The effect of the operation of the fan was to make a vacuum over the air shaft, and cause the air to rush out of the air shaft to fill this vacuum, and, as the air shaft was connected at the bottom of the mine with the slope, the rush of air out of the air shaft caused a rush of air down the slope from without to take the place of the air that was removed by the fan. The slope was called the "intake," and the air shaft the "outtake," of the mine. The purpose of the fan was to create a draft into the mine at the mouth of the slope, and thence through all the workings, and out of the mine through the air shaft, and thus ventilate the mine, and convey fresh air throughout it. When the fan is in operation the ventilation is expedited, and when the fan is stopped ventilation is retarded. The tendency of the air through the mine is to take the nearest course. Consequently, if an opening is made between the slope and air course higher up than the bottom of the mine, the tendency of the air would be to pass through such opening (if large enough to take it all), and out through the air course, without passing through the lower workings. At the time of the fire, intestate was working on the second south entry. The fire originated higher up in the mine, between the first north and first south entries. The fire started about 9 or 10 o'clock in the forenoon, and was first discovered burning in a cross cut or "dog hole" (passage from the slope to the air course), which was between the first south and first north entry. The fire started in a brattice (plank barricade, with dirt packed in between two layers of plank), which was put in the crosscut to keep the air from passing from the slope into the air course. The fire, when first seen, was burning the planks of this brattice. The witness Hudgins, who discovered it, immediately went out of the mine on a trip of tram cars and notified the superintendent, Johns, who was at work in the engine house on top. Hudgins and Hinton testify that Johns was notified that the fan house was on fire, and that he told McCall to stop the fan, if the fan house was on fire. In this, both Johns and McCall corroborate these witnesses while the witness Milam says he heard nothing about the fan house being on fire. The witness McCall testified that Johns then went into the mine, not going to the fan house, and that he (McCall) went to the fan house, and shut off the fan for a couple of minutes, and, finding the fan house was not on fire, put it in operation again, and that the fan itself never stopped revolving. Other witnesses testify that the fan was stopped for a long time from the first announcement of the fire. After the witness Johns had received information of the fire, he went down into the mine, to the place where it was burning. He and other men spent 25 or 30 minutes in throwing water on the fire with buckets from a "sump" in the slope near the crosscut, where the fire was. The bursting of a steam pipe, which drove the smoke from the fire up the slope, caused the men to desist from their efforts to put it out this way, and they were soon driven to the mouth of the slope. After unsuccessful efforts, by rescue parties, to reach the part of the slope below the fire, a trip of cars was run down three times and brought to the top again. The last time the trip was on fire. The testimony showed that, at this time, the slope was full of smoke, and that no one could pass the fire on the slope, either going up or coming down. The superintendent, Johns, then consulted with the miners as to what else could be done to rescue the imprisoned men, and the miners unanimously agreed that nothing further could be done to get the men out, and that the proper thing to do to save the bodies of the men, and to keep the mine from burning entirely up, was to seal up the mouth of the slope and air course, and, by withdrawing the supply of air and oxygen from the fire, to smother it out, and this was done, after the lapse of a period variously stated by the witnesses at from one to three hours. At the time of the fire, the testimony showed that appellant had no hose at its plant, and that there were but two sources for the supply of water to extinguish the fire. One was the water that accumulated in an abandoned mine, near the slope which caught fire, and called the "Electric Haulage Drift." The testimony as to the extent of this supply tended to show that it was barely sufficient, at the time of the fire, to supply the boilers which ran the hoisting engine, pumps, and fan, and that there was none available for extinguishing the fire in the slope. The other source of supply was the Cahaba river, which was a mile and a quarter or a mile and a half from the mouth of the slope. The testimony tended to show that the pipe line from the Cahaba river to the slope was partially removed, and not available, and that there was no supply of pipe nearer than Birmingham. There was also testimony tending to show that it would require three or four days to procure the pipe, and a day or more to lay it after it was procured. There was also testimony tending to show that the man who occupied the adjoining room to the intestate at the time of the fire notified the intestate that the slope was on fire, and that the intestate heard the notification, and started out of the room, and that he had time to get out of the mine before the fire spread.

During the examination of one of the witnesses for the plaintiff, he testified that he was in the mine digging coal at the time the fire broke out; and, further, that the mine was bratticed up 2 or 2 1/2 hours after the fire commenced, and that "at the time the brattice was begun the fire must have been on the slope and air course." The plaintiff moved to exclude the portion of this witness' testimony which is in quotations, because it was the conclusion of the witness. The court sustained the motion, excluded said testimony, and to this ruling the defendant duly excepted.

During the examination of another witness for the plaintiff, who was at work as a miner in the defendant's mine at the time of the fire, and who knew the plaintiff's intestate, he testified that he was a sober and industrious man, and was a professional miner. Thereupon the plaintiff asked the witness the following question: "How much could an average miner, who was in good health and strength and industry, dig of coal in a day at this mine, at that time?" The defendant objected to the question, because it called for immaterial and irrelevant evidence. The court overruled the objection, and the defendant duly excepted. The witness answered: "From five to nine tons a day."

During the examination of different witnesses for the plaintiff, who were shown by their testimony to have been engaged in mining for many years, and to have been experienced miners, the plaintiff asked them as to the different ways in which fires in mines could be extinguished; and, during the examination of other witnesses by the plaintiff, they were asked as to the feasibility of getting the necessary implements from different places to extinguish the fire in the defendant's mine, and as to whether or not these implements could have been obtained and used in time to have saved the plaintiff's intestate's life. To each of the questions calling for such evidence the defendant separately objected. The court overruled the objections, and the defendant separately excepted to each of such rulings.

During the examination of the plaintiff, he was asked the following question: "State whether or not before the fire there was a pipe line for water running from Belle Ellen mine to the Cahaba river." The defendant objected to this question, because it was not confined to the time of the fire or about that time. The court overruled the objection, and the defendant duly excepted. The witness answered that,...