Smith v. Wolf

• Decision Date: 07 April 1909
• Parties: SMITH v. WOLF.
• Court: Alabama Supreme Court

49 So. 395

160 Ala. 644

SMITH v. WOLF.

Supreme Court of Alabama

April 7, 1909

Rehearing Denied May 11, 1909.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by D. C. Wolf against R. D. Smith. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The pleading and the facts sufficiently appear in the opinion of the court and in a former report of this case (Wolf v Smith, 149 Ala. 457, 42 So. 824, 9 L. R. A. [N. S.] 338), to which reference is here made. The following charges were refused to the defendant: (1) "Even though the jury should believe from the evidence that the defendant failed to comply with section 2917 of the Code of 1896 in any particular, they cannot assess any damages against the defendant unless the evidence reasonably satisfied the jury that the plaintiff sustained substantial damages." (4) "If you believe from the evidence that there was a failure to furnish the plaintiff a waterproof blanket at or about the mouth of the mine, but that such failure did not cause or contribute to any aggravation of plaintiff's injuries, or cause him any additional injury, you cannot find any damages on that account." (5) "If the jury believe from the evidence that substantially all the damages suffered by the plaintiff were the proximate result of the explosion of the dynamite in his hand, you cannot find a verdict for more than nominal damages." There was verdict for $2,500.

Weatherly & Stokely and Tillman, Grubb, Bradley & Morrow, for appellant.

Frank S. White & Sons, for appellee.

DENSON J.

The complaint contained several counts, but all were eliminated by demurrers sustained, and charges given, except the third count as amended, which is in the following language "Plaintiff claims of the defendant $20,000 damages, in this, that on, to wit, the 3d day of February, 1904 defendant was operating a coal mine called 'Bradford mine,' in Jefferson county, Ala., that plaintiff was working in said mine as an employè of said defendant, and while at work therein was injured and damaged as is more particularly set out in the first count of this complaint. And plaintiff avers that it was the duty of defendant while operating said mine to provide a stretcher properly constructed, woolen and waterproof blankets in good condition for use in carrying away any person that might be injured while at work in said mine. And plaintiff avers: That defendant negligently failed to provide such stretcher and blankets, and because thereof, when plaintiff was injured as aforesaid, which was in the nighttime, and the weather was very cold, on account of the failure of the defendant to provide such stretcher and blankets, he was compelled to walk a long way on foot, through the mud, and he was compelled to wade through cold water, and he had to be carried a long distance over rough roads in a wagon, from which he suffered greatly on account of being jolted and jarred, and he suffered excruciatingly from the cold; that the plaintiff was at the time wet; and that his injuries were greatly aggravated, his suffering greatly increased, both mental and physical, on account of the failure on defendant's part in providing such stretcher and blankets. And plaintiff further avers that it was the duty of defendant to keep at the store which was at said mines linseed or olive oil, bandages, and linen for use in emergencies. And plaintiff avers that defendant failed to keep said linseed or olive oil, bandages, and linen at said store, and because thereof plaintiff's injuries were greatly aggravated, that by reason thereof his wounds could not be bandaged or oil applied to the same until long afterwards, and after he had been removed a long distance therefrom. And his injuries and suffering was proximately greatly increased thereby. Wherefore plaintiff sues and claims damages of defendant as aforesaid."

The cause has been before this court on a former appeal. Wolf v. Smith, 149 Ala. 457, 42 So. 824, 9 L. R. A. (N. S.) 338. Upon that appeal we held this third count good, against a demurrer which proceeded upon the notion that the statute upon which it is based (section 2917, Code 1896) is violative of the Constitution, "in that it arbitrarily invades the rights of the defendant and deprives him of his property rights without due process of law, and in its enactment that the Legislature was not within a legitimate exercise of the police power of the state." We are now asked to overturn that decision.

It is deemed unnecessary to restate the grounds upon which the statute was sustained on the former appeal, or to reproduce the arguments. It suffices to say that a careful consideration of briefs of counsel and of the authorities has failed to convince us that our decision, on the points presented, was unsound; but counsel for appellant insist that the validity of the statute is assailed, on the present appeal, from a new point of view. It is pointed out by the demurrer that the statute is a species of vicious class legislation, being aimed solely at coal mine operators, while other similar businesses, such as ore mining, are not affected thereby. The argument in support of this contention is: That ore mining and coal mining are equally hazardous; that similar explosives are used and practically the same dangers encountered by those engaged or working in such different classes of mines; that the statute is evidently aimed at the employer, and not at the hazards incident to the employment; that no just reason exists why the coal operator should furnish such articles to the injured, while other employers of labor are exempted from such duty. The gist of their contention, in other words, is that coal mine operators are by the statute required to furnish, as a part of their equipment, articles and appliances not required to be supplied by the operators of other mines conducted under like circumstances.

Thus it will be seen that it is assumed, in argument, that the dangers attendant upon the working of ore mines, quarries, and railroads are the same as or similar to those incident to coal mining. If we must determine the question at issue upon the hypothesis that other businesses are attended with similar dangers then we might answer the insistence of the appellant by saying that, if the court has judicial knowledge in respect to the question, it is that the dangers which menace the employé in the ore mine, in the quarry, or on the railroad, are not the same as those which the employé in the coal mine encounters. We think it may safely be said to be a matter of general information that the operation of coal mines is more hazardous probably than any species of mining. There are dangers inherent in the operation of coal mines which do not exist in ore mines. As is suggested in appellee's brief: "They extend to very much greater length in their subterranean ways. They are much farther from the surface. They contain inflammable and explosive dust liable to be ignited by blasting, and they contain quantities of gas also liable to be ignited, neither of which is present in ore mines." And certainly nothing of the kind is present in the quarry, or attendant upon the employment of operating a railroad. Furthermore, considering area and extent, many more operatives are usually at work in a coal mine than are required in the other businesses named.

It must be conceded by all that the Constitution does not forbid a reasonable and proper classification of the objects of legislation. "The question is: What is reasonable and proper in the premises? No definite or absolute rule can be laid down by which the question can be determined in all cases, but the question must be determined in each case as it arises and for that case alone." 1 Lewis' Sutherland, Stat. Const. § 203. The proper test seems to be that "the reasonableness of a classification is that it must be based upon some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection." State v. Jacksonville Terminal Co., 41 Fla. 363, 374, 27 So. 221, 224. And as was said by the Supreme Court of the United States: "The state may distinguish, select, and qualify objects of legislation, and necessarily the power must have a wide range of discretion. * * * Classification for such purposes is not invalid because not depending on scientific or marked differences in things or persons or in their relations. It suffices if it is practical, and is not reviewable unless palpably arbitrary." Orient Ins. Co. v. Daggs, 172 U.S. 557, 562, 19 S.Ct. 281, 282, 43 L.Ed. 552. So in the case of Railway Co. v. Mackey, 127 U.S. 205, 8 S.Ct 1161, 32 L.Ed. 107, a law of Kansas which abrogated as to railroads the rule of the common...