Pratt Consol. Coal Co. v. Davidson

• Decision Date: 01 June 1911
• Citation: Pratt Consol. Coal Co. v. Davidson, 173 Ala. 667, 55 So. 886 (Ala. 1911)
• Parties: PRATT CONSOL. COAL CO. v. DAVIDSON.
• Court: Alabama Supreme Court

55 So. 886

173 Ala. 667

PRATT CONSOL. COAL CO. v. DAVIDSON.

Supreme Court of Alabama

June 1, 1911

Rehearing Denied June 27, 1911.

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

Action by J. J. Davidson, administrator, against the Pratt Consolidated Coal Company.From a judgment for plaintiffdefendant appeals.Reversed and remanded.

Lampkin & Watts and Bankhead & Bankhead, for appellant.

W. H Smith, for appellee.

SAYRE J.

Plaintiff's intestate, who was a miner, lost his life by an explosion of gas in the defendant company's mine where he was mining coal.The case went to the jury on counts 3, 4, and 5, the general issue, and various pleas of contributory negligence and assumption of risk.

Section 1031 of the Code of 1907 requires that, "when gas is known to exist, the owner, agent, or operator of any coal mine shall employ a competent fire boss, whose duties it shall be to examine every place in the mine before the men are permitted to enter for work.Said fire boss shall be at some convenient place each day to inform every man as to the state and condition of his working place before entering.Said work shall be carefully examined every morning with a safety lamp by the fire boss before the workmen are allowed to enter therein."Subsection 2 of the employer's liability act (section 3910 of the Code) makes the employer liable for injury to his employé "when the injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has any superintendence intrusted to him, whilst in the exercise of such superintendence."

Count 4, after alleging conditions which put into operation the statute requiring the appointment of a fire boss and prescribing his duties, alleges a breach of the duty imposed and that it caused the death of plaintiff's intestate.The duty of a fire boss--discharged in this case by a person called "mine foreman"--is a duty of superintendence, within or without section 1031 of the Code.The count, as for any objection taken to it, was well framed under the second subdivision of the employer's liability act.

When answering interrogatories propounded to it under the statute, defendant's superintendent answering for it, defendant deposed: "As gas had been discovered in only a certain part of the mine far removed from the entrance, and for this reason, no warning or sign was given or placed at the entrance to the mine.The warning signals were placed nearer the locality where gas had been discovered."And further: "As before explained, the warnings were given or placed further down in the mine and near the locality in said mine where gas had been discovered."Those parts. of the depositions which have been quoted were, on motion of the plaintiff, stricken, on the ground that they were not responsive to the interrogatories.To the defenses set up in the special pleas, the substance of which will sufficiently appear later on, those parts of the deposition stricken by the court were relevant and material, as the appellant concedes.Such being the case, according to both the earliest and the most recent decisions of this court, from which we have no disposition to depart again, there was error in striking the quoted parts of the deposition on the ground that they were not responsive to the interrogatories propounded.They were responsive to the issues, as they had been made up with the court's approval, and, not being otherwise objectionable, the defendant was entitled to whatever weight they might have had with the jury.Carwille v. Franklin,164 Ala. 543, 51 So. 396, and cases there cited.It is said, however, that this error was not prejudicial to the defendant.If the case had been tried on any true line, and without other error, we think a proper application of the doctrine of error without injury in respect to this particular ruling might be worked out on one or more considerations.But there was other error which makes a reversal necessary.

The complaint upon which the case was tried proceeded upon two theories: One, that defendant had not complied with the requirements of section 1016 of the Code, for that it had failed to provide and maintain ample means of ventilation for the circulation of air through all the working places in its mine to an extent that would dilute, carry off, and render harmless noxious gases generated in the mine; and the other, that there had been negligence on the part of defendant's superintendent or fire boss in the performance of the duties of superintendence committed to him as required by section 1031 of the Code.

To hold, in the absence of a special contract on sufficient consideration, that plaintiff's intestate, at the time of entering defendant's service or by afterwards remaining in that service, assumed the risk of defendant's default in the observance of the statute, or of negligence in superintendence under the employer's liability act, would emasculate those statutes by defeating their clear purpose;

nor could the defendant evade responsibility for its failure to observe the statute by setting up different general rules and regulations for the conduct of its business which it may have considered a sufficient substitute for the precautions enjoined by the statute; nor could it by such means impose upon plaintiff's intestate and other employés in similar cases the duty of ascertaining whether it had complied with the law.

Plaintiff's intestate may, however, have been guilty of contributory negligence in going into a place where he knew gas existed at the time in dangerous quantity, or where he had been specially warned not to go.Woodward Iron Co. v Andrews,114 Ala. 243...