Brilliant Coal Co. v. Barton
| Decision Date | 02 December 1920 |
| Docket Number | 6 Div. 28 |
| Citation | 87 So. 830,205 Ala. 89 |
| Parties | BRILLIANT COAL CO. v. BARTON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.
Action by Mutie Barton against the Brilliant Coal Company for damages for personal injuries suffered in a mine of the defendant's. Judgment for the plaintiff, and defendant appeals. Affirmed.
For the pleadings and some of the facts, see former opinion (203 Ala 38, 81 So. 828).
A.F Fite and J.H. Bankhead, Jr., both of Jasper, for appellant.
Lacy Lacy & Shepherd, of Jasper, for appellee.
This is the second appeal in this case, 203 Ala. 38, 81 So. 828. The pleadings on the last trial were the same as on the first, and are sufficiently shown in the report cited above. Errors now assigned are based on instructions given or refused and sundry rulings on questions of evidence.
Charge 2, given for plaintiff, was requested in an effort to explain a charge which had been given for the defendant. The explanatory charge might well have been refused, for that it asserted no proposition of law. Furthermore, as an explanation, it, along with the charge explained, failed of its purpose to aid the jury to an understanding of the issues in the cause because, though asserting in a way that defendant employer could not be held as an insurer of plaintiff employé's safety, it omitted to predicate defendant's duty to exercise reasonable diligence to that end, without which statement the charge, even if it had been otherwise unobjectionable, was incomplete and misleading. However, it contained no erroneous statement of law, and as a statement of fact it was no doubt correct as far as it went, so that reversible error cannot be affirmed of the court's action in submitting it to the jury.
The court in its oral charge to the jury said:
"If the animal was delivered to him [plaintiff] without reins, that was, in effect, a command by his superior to so drive the mule in the mine without reins."
Plaintiff before and at the time of his injury was employed by defendant to drive a mule in its mine. The evidence showed without contradiction, or the possibility of adverse inference, that the mule had been given in charge to plaintiff to be driven, as was customary, without reins. The mule swerved from the path on which it was being driven and so came into contact with and displaced the prop defendant had set up to hold up the rock which fell upon plaintiff. Several pleas imputed contributory negligence to plaintiff by reason that he undertook to drive the mule without reins. It is urged for error against that part of the court's charge quoted above that it was a charge upon the effect of the evidence and violated section 5362 of the Code, which inhibits the court to "charge upon the effect of the testimony, unless required to do so by one of the parties." The phraseology of the charge lends itself superficially to the argument for error; but it will be observed upon analysis that the only fact involved, viz., the delivery of the animal to plaintiff without reins, was stated with hypothesis, and that the further statement of the charge was not upon the effect of evidence but upon the legal effect of the fact hypothesized. That legal effect was correctly stated. It was so held on the former appeal. There was no reversible error in giving the charge.
After appellee's witness Sam Cain had testified on cross-examination that "in mining a man who is doing the work has to use his judgment about the proper thing to do with reference to the roof," the court sustained an objection to defendant's next question, "It depends on the conditions as they appear to exist in each particular place?" The question called for and expected an expression of opinion by the witness that would have amounted to a truism. All human conduct depends on circumstances or conditions...
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