Foley v. Pioneer Min. & Mfg. Co.

• Decision Date: 08 February 1906
• Citation: 144 Ala. 178,40 So. 273
• Parties: FOLEY v. PIONEER MIN. & MFG. CO.
• Court: Alabama Supreme Court

40 So. 273

144 Ala. 178

FOLEY v. PIONEER MIN. & MFG. CO.

Supreme Court of Alabama

February 8, 1906

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

"To be officially reported."

Action by Mary Foley, as administratrix of Samuel Brown, deceased against the Pioneer Mining & Manufacturing Company. From a judgment for defendant, plaintiff appeals. Reversed.

Appellant as the administratrix of Samuel Brown, deceased, brings this action for damages on account of the death of her intestate. It is brought under the employers' liability act, and the allegations are that the decedent came to his death by reason of white damp or noxious gases while working in defendant's mine, and the negligence alleged consisted in a want of ventilation such as is required to keep the mine free from noxious gases, and as is required by the statute in this state. The negligence was attributed to the master in one count, and to the superintendent in another, in not providing proper fans, and in not keeping the fans provided running in such a way as to free the mine from gases and keep it in such condition as not to render work dangerous. The defendant filed four pleas; the first two being the general issue. The third plea was as follows: "And for further answer to the complaint the defendant says that the plaintiff's intestate was guilty of negligence which proximately contributed to his alleged injury, and his said negligence consisted in this, to wit: that he failed to order and direct the fan then and there being in said manway to be turned on and operated for the purpose of expelling any noxious or bad gases in the said manway." Plea 4 was as follows: "And for further answer to the complaint the defendant says that it was the duty of plaintiff's intestate, before going into said manway or the place where he was employed to work, to see to it that the fan then and there provided by the defendant was in operation, which said fan was intended to drive out any bad gases in the manway without seeing to it that the said fan was in operation, and he was overcome by the gas, and that he then and thereby in so going into said manway, without said fan in operation guilty of negligence which proximately contributed to his injury." There were demurrers to these two pleas, which the court overruled. The defendant objected, and the court sustained the objection, to the following question propounded by plaintiff to witnesses Kelso and Tenny: "What condition did you find the air in there the next morning?"

James A. Mitchell and Frank Deedmeyer, for appellant.

Campbell & Walker, for appellee.

DOWDELL J.

The defendant's pleas numbered 3 and 4 were each faulty in averments of facts constituting alleged contributory negligence, and the demurrers interposed to these pleas should have been sustained. The third plea does not aver any duty rested on the plaintiff's intestate to order and direct the operation of the fan, or that it was not at the time being duly operated, or that, if it was not running that he knew it, or by due care could have known it, or that he knew that it was necessary for the fan to be operated in order for the "manway" to be to be a safe place to work. While the fourth plea avers a duty resting on plaintiff's intestate to see that the fan was...