Drennen v. Smith

• Decision Date: 28 April 1897
• Citation: 115 Ala. 396,22 So. 442
• Parties: DRENNEN ET AL. v. SMITH. [1]
• Court: Alabama Supreme Court

22 So. 442

115 Ala. 396

DRENNEN ET AL. v. SMITH. ^[1]

Supreme Court of Alabama

April 28, 1897

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

Action by Edgar Smith, by his next friend, against Drennen & Co. for personal injuries alleged to have been suffered by plaintiff by reason of the negligence of defendants or their employés. Judgment for plaintiff. Defendants appeal. Reversed.

The injuries suffered by the plaintiff were received while he was at work in the defendants' mines, and were caused by a fire in said mines, which caused a large amount of smoke to accumulate in the mines, by which smoke the plaintiff was smothered and asphyxiated.

The substance of the two counts of the complaint, upon which the case was tried, are sufficiently stated in the opinion.

It was shown by the evidence that at the time the fire in the mines originated, the plaintiff was at work in what was known as the "Fourth West Entry;" that is, the last entry towards the bottom of the slope. The description of the mine as adduced from the evidence, as shown by the bill of exceptions, was as follows: The mine is worked by what is called a "slope," or hole in the ground, inclining downward. That on the left side of the slope there was a manway going down the full length of the mine 1,200 or 1,400 feet, and that just to the left of the mouth of the slope and just above the mouth of the manway, there is what is called and known as a "suction fan," used for ventilating purposes. That the use and mode of operating said fan was for carrying fresh air down into the mine. That the fan was made to revolve by a small steam chest or engine, and by its revolutions caused the air that was down in the mine at the foot of the slope to come up the manway and out through the fan house, and that other air would go down the slope and take its place; thus creating a current down the slope, which was called the "down cast," and up the manway, which is called the "up cast." That the steam chest which ran the fan was connected to the boilers of the hoisting engine, which was situated 200 or 300 feet from the fan, where all the steam was generated. That a valve right at the fan house, inside of the fan house, was used to cut off or to let on the steam for the purpose of stopping the fan from running. That from the boilers a larger or main steam-pipe line went to the mines and down into the mines, on the right hand or east side of the slope which was the opposite side from the manway and passed down through the air course, which steam-pipe line extended along and down the air course nearly to the bottom of the mine for operating pumps down in the mine, and for the purpose of causing a current of air up the air course east of the slope which served and was used not only for operating the pumps, but also caused a current of hot air to rise and go out of the air course, and in that way ventilate the east side of the mine. That at a point very near where the main steam line enters the mine on the east or right hand side, a small pipe line running across to the fan was attached, and near this point of connection there was another valve which was used for also cutting off the steam from the fan. Down the slope ran two parallel tram tracks, consisting of iron rails upon which ran tram cars which were drawn up and down in the mine for the purpose of hoisting coal. On the west side of the slope the first entry or cross entry was called the "First" or "Upper West," about 300 feet from the mouth of the mine; further on down the west side was the second west entry, which was a little below and nearly opposite the entry on the east side, known as the "Old First East Entry." That the old first east entry had been for nearly two years an abandoned entry, no work having been done therein. That about 30 or 40 feet from where the old first east entry opened into the slope was what is called a "bradish" or door across it, which was made of planks, for stopping up the mouth of the entry and for ventilating purposes, and it was this door that caught on fire and was burning. That nearly opposite this old first east entry and the bradish that was burned was the second west entry that was above referred to, some 300 feet below the first west, and still further down on the west side about 300 feet below the second west entry, was a third entry, and about 300 feet lower down was the fourth entry which was the last entry on that side.

The plaintiff's evidence was to the effect that Supt. Reid was negligent in not having the suction fan stopped as soon as he discovered that the mine was on fire, and that, if the fan had been stopped, the smoke would have gone out of the slope, while, with the fan going, the current of air running down the slope carried the smoke down in the mine. The other facts of the case are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give, among others, the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that under the evidence in this case, the plaintiff is not entitled to recover under the sixth count of the complaint." (2) "The court charges the jury that under the evidence in this case, the plaintiff was not a servant or employé of the defendant." (7) "If the jury believe that the plaintiff's injuries were proximately caused by the smoke in the manway, and that such smoke was carried or sucked into the manway, not by any revolving of the fan, before John House shut it down, by the order of John Reid, if the said John House did so shut it down by John Reid's order, but by reason of the fan having been set in motion by a second time by some one unknown to and unauthorized by said Reid, then, although said Reid may not have caused said fan to be stopped as promptly as a reasonably prudent superintendent would have stopped it, the plaintiff is not entitled to recover in this action." (11) "The court charges the jury that if the jury believe from the evidence that, at the time of the accident to the plaintiff, he was at work in the Mary Lee Mines, which was being operated by the defendant, under the contract made by the father of the plaintiff either with Mel. Drennen or the superintendent of the said mines, whereby and under which the agreement was, that the plaintiff, together with his brother, who were miners, were to cut coal in the said Mary Lee Mines, and furnish their own powder and other tools and implements which were to be used by them in cutting coal, and to receive for each ton of coal mined by them 42 1/2 cents, and that the only superintendency over their work which the defendants reserved, and were exercising, was, that the superintendent, or mining boss of said mines, was to look after the mining of said coal, so as to see that it was done in a reasonably proper manner, so as not to injure the mine, then the court charges you that, so working under that contract, the plaintiff was not a servant in the employ of the defendant, but was an independent contractor." (14) "That, under the pleading in this case, the burden is by law upon the plaintiff to reasonably satisfy the jury, not only that John Reid, the defendant's superintendent, was negligent as charged in the complaint, but that such...