Tennessee Coal, Iron & R. Co. v. Herndon

• Decision Date: 04 December 1893
• Citation: 100 Ala. 451,14 So. 287
• Parties: TENNESSEE COAL, IRON & R. CO. v. HERNDON.
• Court: Alabama Supreme Court

14 So. 287

100 Ala. 451

TENNESSEE COAL, IRON & R. CO. v. HERNDON.

Supreme Court of Alabama

December 4, 1893

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by John G. Herndon, as administrator of Thomas Page deceased, against the Tennessee Coal, Iron & Railroad Company, for injuries to said Page, resulting in his death alleged to have been caused by the negligence of defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

The testimony for the plaintiff tended to show that his intestate, at the time of his death, was engaged in the service of the defendant as fireman on an engine which drew cinder pots from the pit in its furnace, where they were loaded, to the dumping ground; that at times it was plaintiff's intestate's duty to assist in unloading the pots full of cinder; that, when the accident occurred which resulted in his death, the deceased was assisting the regular "dumper" in turning the cinder out of the pots full of cinder, when it turned with such violence as to jerk him from his position on the trucks, and threw him into the molten mass of cinder. The evidence for the plaintiff further tended to show that there had been difficulty in removing the pot from the pit, and that, on account of the delay in so moving it, a hard crust had formed over the top of the pot, between 4 and 4 1/2 inches deep; and that, when the pot tilted, the crust not being broken, it was carried with such violence and force as to turn the cinder pot completely over. It was also shown by the testimony for the plaintiff that on this particular pot there were no safety chains, and that there were only two trunnion bolts, when in fact there should have been five; that the defendant's employes who were superior to the plaintiff's intestate and who had charge of the cinder pots, were made cognizant of these defects before the accident. The testimony for the defendant tended to show that at the time of the accident the plaintiff was standing on the trucks which supported the cinder pots, when in fact he should have been standing on the ground in his effort to turn it, and that, after the crust had formed on the top of the cinders, the rules of the company required the dumper, whom the defendant was assisting, to break the crust before undertaking to turn out the cinder. There was also evidence for the defendant tending to show that, in cases where there was a crust formed over the top of the molten cinders, it was less dangerous not to have the safety chains. These respective contentions on the part of the plaintiff and defendant were supported by a great deal of evidence in behalf of each. Upon the examination of a witness for the plaintiff, he testified that upon being told by the man whose duty it was to repair the cinder pots, to get a pot off of the hill, he did so, and got the one which was used by the plaintiff's intestate at the time of the injury; that he discovered that there were no safety chains on the cinder pot in question, and that he told this to the repairer. The plaintiff then asked the witness the following question: "What was it [the cinder pot] carried there for?" (on the hill.) The defendant objected to this question, the court overruled the objection, and the defendant excepted. The witness answered that it was carried there "for repairs;" that "we never carried them up on the hill, unless they were out of repair." Upon the examination of the engineer who was on the engine that drew the cinder pot on the occasion of the plaintiff's intestate's injury, he was asked the following question by the plaintiff: "What was done with the pots when they got out of repair, if anything?" The defendant objected to this question, the court overruled this objection, and the defendant excepted. The witness answered "They were taken up to the repairing track on the hill." There was testimony for the plaintiff showing that he was 16 years old at the time of his death; that he earned $1.50 per day; that he spent about $30 per year in clothes; that his board cost between $14 and $18 per month, and that he was industrious and saving. The American Mortality Tables were introduced, and showed that, at the time of the plaintiff's intestate's death, his natural expectancy of life was 43.3 years.

After the introduction of all the evidence, the defendant requested the following charges, and separately excepted to the court's refusal to give each of them as asked: (1) "That if the jury believe the evidence they must find for the defendant under the second count of the complaint." (2) "That if the jury believe the evidence in this case they must find for a defendant." (3) "That if the jury believe from the evidence that the safer place for the dumpers to stand while dumping the slag from the pot was on the ground or roadbed, and that the plaintiff's intestate undertook to dump, or assist in dumping, said slag from another and more dangerous position when they could have dumped the same by standing on the ground, then if you believe, if they had stood upon the ground, the plaintiff's intestate would not have been injured, I charge you that your verdict must be for the defendant." (4) "The court charges the jury that, under the evidence in this case, the plaintiff cannot recover as damage as much as seven thousand dollars, if you believe the plaintiff is entitled to recover at all of the defendant." (5) "The court charges the jury that they cannot give the plaintiff as much as seven thousand dollars, if the jury should find a verdict for the plaintiff." (6) "The court charges the jury that the plaintiff is not entitled to recover as much as five thousand dollars under the evidence in this case." (7) "That if the jury believe from the evidence that, had plaintiff's intestate not been killed, he would probably have married and have had children, and that such children would have survived him, then, if you believe that plaintiff is entitled to a verdict, the damages which you find can only be nominal." (8) "That as the evidence fails to show any dependence upon the plaintiff's intestate, if the jury believe that the plaintiff is entitled to a verdict, the measure of damages which plaintiff can recover is only that amount which the jury may believe, from the evidence, the present heirs and distributees of said intestate would have probably received had he lived, and not been killed; and in estimating such amount which the present heirs and distributees of said intestate would have probably received at his death had he not been killed, as alleged in the complaint, the jury may look to the probability-if there was such a probability-of the said intestate's marrying and having children, and the probability of such children surviving him, and taking his estate instead of the present heirs and distributees." (9) "That, if the jury believe that the plaintiff is entitled to a verdict, the measure of damages is what plaintiff's intestate's present heirs and distributees would likely have received from his estate; and in considering that question they may look to the probability of said intestate, if he had not been killed,...