Burnwell Coal Co. v. Setzer

Decision Date17 December 1914
Docket Number748
Citation67 So. 604,191 Ala. 398
PartiesBURNWELL COAL CO. v. SETZER.
CourtAlabama Supreme Court

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.

Bankhead & Bankhead, of Jasper, for appellant.

Allen &amp 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 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 of such defect or negligence; nor is the master or employer liable under subdivision 1, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition; provided, that in no event shall it be contributory negligence or an assumption of the risk on the part of a servant to remain in the employment of the master or employer after knowledge of the defect or negligence causing the injury, unless he be a servant whose duty it is to remedy the defect or who committed the negligent act causing the injury complained of."

The only effect of the addition (italicized) to the statute was to remove as a basis of assumption of risk and of contributory negligence on the part of an employé, in respect of a defective condition within the purview of the first subdivision of the Liability Act (section 3910), the remaining in service after knowledge by the employé, injured in consequence of the defect in condition to which the complaint or a count thereof attributed the injury for proximate cause, of the defect in condition of the ways, works, machinery, or plant of the master, except in cases where the employé injured was under the duty to remedy the defect causing his injury, or where the employé injured committed the negligent act causing the injury complained of. There is no general legislative purpose expressed, or necessarily impliable, to deny the existence or the defensive effect of contributory negligence or assumption of risk in all cases.

Here replication 2 asserted in assumed avoidance of the defense interposed by plea 2, which was a plea of contributory negligence, the mere fact that no duty rested on the intestate to remedy the defects in condition described in the complaint. It does not appear from the plea that any such duty was imposed on intestate under his contract of employment. The plea avers that intestate, with knowledge that a loaded car was likely or liable to break loose on the slope and injure the intestate, nevertheless negligently without ascertaining whether loaded cars were being drawn up the slope, took the thus known dangerous course, and...

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