Burnwell Coal Co. v. Setzer, 748

CourtSupreme Court of Alabama
Writing for the CourtMcCLELLAN, J.
Citation67 So. 604,191 Ala. 398
Decision Date17 December 1914
Docket Number748
PartiesBURNWELL COAL CO. v. SETZER.

67 So. 604

191 Ala. 398

BURNWELL COAL CO.
v.
SETZER.

No. 748

Supreme Court of Alabama

December 17, 1914


Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by Russ Setzer, as administrator, against the Burnwell Coal Company, for damages for the death of his intestate. Judgment for plaintiff and defendant appeals. Reversed and remanded. [67 So. 605]

Bankhead & Bankhead, of Jasper, for appellant.

Allen & Bell, of Birmingham, and Ray & Cooner, of Jasper, for appellee.

McCLELLAN, J.

Plainfiff's intestate, a boy about 15 years of age, was killed on March 21, 1911, while in the employ and service of the defendant (appellant) in its operation of a coal mine. The cause of his death was a trip of coal cars, which, while being hauled up the slope, got loose and ran back down the slope upon him. The counts passing to the jury were those numbered 1, 11, and 15, and one lettered A. The first count ascribed intestate's wrongful death to negligence in respect of the safety of the place in which he worked. The eleventh count was framed under the first subdivision of the Liability Act (Code, § 3910), and charged that the defect in the condition of the ways, etc., consisted in the negligent failure to provide or maintain a dead latch or derailing switch to derail cars when becoming loose on the incline in the mine. The fifteenth count was framed under the first subdivision of that statute, and alleged the defect to have consisted in the absence of a drag, attached to a car or cars, which while ascending a slope in said mine became detached and ran back down the slope, causing intestate's death. Count A was framed under the second subdivision of the statute, ascribed the negligence to Superintendent Wooten, and described his dereliction to have [67 So. 606] been that he allowed the work of the defendant, therein described, to be performed in a manner dangerous to the safety of plaintiff's intestate.

Count 1 sufficiently states a cause of action under the Homicide Act (Code, §§ 2485, 2486), as for wrongful death resulting from the breach of a common-law duty. The recovery under this count (1) could only be punitive in character. So much of the argument, suggested by the idea that only compensatory damages were awardable, predicated of excessiveness in the verdict, originally or as remitted by the plaintiff, thus becomes inapt. See Choate v. A.G.S.R.R. Co., 170 Ala. 590, 54 So. 507; Sou. Ry. Co. v. Cooper, 172 Ala. 505, 512, 513, 55 So. 211.

Counts 11 and 15 are not subject to the argued criticism that the omission to aver a duty to afford the preservative instrumentalities described in the counts numbered these defective. They each declare upon a breach of the duty, under the statute, in respect of the defect in the condition of the ways, works, etc. The allegation of each is of a described defect in that condition. It cannot be said as a matter of law that the absence of the defined safety appliances was not a defect in condition of the ways, etc. The counts were sufficient, and the issues they made in that regard were of fact. The act, approved April 18, 1911 (Acts, 1911, pp. 500-538), effecting the regulation of coal mining, had not become a law at the time of the injury to plaintiff's intestate. So the provisions of section 63 1/2 (page 522) are without bearing on the rights or issues here involved.

Count A was not subject to the demurrer.

The report of the appeal will contain a statement, in substance, of pleas 2, 4, 5, and 6. According to the recitals of the minute entry, demurrers to these pleas were overruled, a ruling in favor, of course, of the defendant appellant. To these pleas, plaintiff replied by replications 1 to 5, inclusive. Replicatlon 1 was a joinder in issue on plea 1, which plea was the general issue. By reference, replications 1 and 2 were interposed to pleas 4 and 5, thus joining issue on pleas 4 and 5, as well as replying specially with the matter averred in replication 2, which was that it was not the duty of intestate to remedy the defect complained of in any count in the complaint. Replication 5 asserted, in avoidance of pleas 2, 4, 5, and 6, that the only means of egress afforded for him to leave the mine in which he was employed was the slopeway, in which he was killed when leaving the place of his employment. Demurrer to special replication 2 was overruled.

The only theory upon which this action could be rested is that assumption of risk or contributory negligence cannot avail as a defense to an action laid in the breach of duty described in subdivision 1 of the Liability Act (section 3910). Such is not the case. The statute noted was changed in the Code of 1907, by the addition of the italicized expressions in the quotation to follow:

"Section 3910. *** The master or employer is not liable under this section, if the servant or employé knew of the defect or negligence causing the injury, and failed in a reasonable time to give information thereof to the master or employer, or to some person superior to himself engaged the service or employment of the master or employer, unless the master or employer, or such superior, already knew
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41 practice notes
  • J. H. Burton & Sons Co. v. May, 1 Div. 312
    • United States
    • Supreme Court of Alabama
    • January 22, 1925
    ...Miller v. Whittington, 202 Ala. 406, 410, 80 So. 499; Alabama, etc., Co. v. Bessiere, 197 Ala. 9, 72 So. 325; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Pullman Co. v. Meyer, 195 Ala. 397, 70 So. 763; Brown v. Mobile Elec. Co., 207 Ala. 61, 91 So. 802; Denson v. Acker, 201 Ala. ......
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...L. & N. R. Co. v. Robinson, 141 Ala. 325, 37 So. 431; Randle v. B. R. L. & P. Co., 169 Ala. 314, 53 So. 918; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Dowling v. Garner, 195 Ala. 493, 496, 70 So. 150; C. of Ga. R. Co. v. Ellison, 199 Ala. 571, 75 So. 159; B. S. R. Co. v. Harris......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...L. & N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Hull v. Wimberly & Thomas Hdw. Co., 178 Ala. 538, 59 So. 568; T. C. I. & R. R. Co. v. Herndon, Adm'r, 100 Ala. 457, 14 So. 287)......
  • Woodmen of the World v. Alford, 3 Div. 455
    • United States
    • Supreme Court of Alabama
    • December 16, 1920
    ...come within the exception of expert testimony. Connors-Weyman Steel Co. v. Harless, 202 Ala. 317, 80 So. 399; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 398; Harbison-Walker Ref. Co. v. Scott, 185 Ala. 641, 64 So. 547; Stewart v. S.S.S. & I. Co., 170 Ala. 544, 54 So. 48, Ann.Cas.1912......
  • Request a trial to view additional results
41 cases
  • J. H. Burton & Sons Co. v. May, 1 Div. 312
    • United States
    • Supreme Court of Alabama
    • January 22, 1925
    ...Miller v. Whittington, 202 Ala. 406, 410, 80 So. 499; Alabama, etc., Co. v. Bessiere, 197 Ala. 9, 72 So. 325; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Pullman Co. v. Meyer, 195 Ala. 397, 70 So. 763; Brown v. Mobile Elec. Co., 207 Ala. 61, 91 So. 802; Denson v. Acker, 201 Ala. ......
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...L. & N. R. Co. v. Robinson, 141 Ala. 325, 37 So. 431; Randle v. B. R. L. & P. Co., 169 Ala. 314, 53 So. 918; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Dowling v. Garner, 195 Ala. 493, 496, 70 So. 150; C. of Ga. R. Co. v. Ellison, 199 Ala. 571, 75 So. 159; B. S. R. Co. v. Harris......
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...L. & N. R. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Renfroe v. Collins & Co., 201 Ala. 489, 78 So. 395; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Hull v. Wimberly & Thomas Hdw. Co., 178 Ala. 538, 59 So. 568; T. C. I. & R. R. Co. v. Herndon, Adm'r, 100 Ala. 457, 14 So. 287)......
  • Woodmen of the World v. Alford, 3 Div. 455
    • United States
    • Supreme Court of Alabama
    • December 16, 1920
    ...come within the exception of expert testimony. Connors-Weyman Steel Co. v. Harless, 202 Ala. 317, 80 So. 399; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 398; Harbison-Walker Ref. Co. v. Scott, 185 Ala. 641, 64 So. 547; Stewart v. S.S.S. & I. Co., 170 Ala. 544, 54 So. 48, Ann.Cas.1912......
  • Request a trial to view additional results

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