Walker v. Birmingham Coal & Iron Co.

• Decision Date: 08 May 1913
• Citation: 184 Ala. 425,63 So. 1012
• Court: Alabama Supreme Court
• Parties: WALKER v. BIRMINGHAM COAL & IRON CO.

63 So. 1012

184 Ala. 425

WALKER v. BIRMINGHAM COAL & IRON CO.

Supreme Court of Alabama

May 8, 1913

On Rehearing, December 18, 1913

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

Action by Mary Walker, administratrix of Jesse Walker, deceased against the Birmingham Coal & Iron Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Mayfield Sayre, and Somerville, JJ., dissenting.

The death was occasioned by an explosion in a coal mine, and the negligence is alleged in various ways under subdivisions 1 and 2 of the Employers' Liability Act (Code 1907, § 3910). In a failure of defendant to provide ample means of ventilation for the circulation of air through the main entrance and all other working places, to an extent that it would dilute, carry off, and render harmless noxious gases generated in said mine, and because of a failure to do so the gases became ignited and caused an explosion which killed plaintiff's intestate.

Perdue & Cox and Willard Drake, all of Birmingham, for appellant.

Percy, Benners & Burr, of Birmingham, and Bankhead & Bankhead, of Jasper, for appellee.

ANDERSON, J.

Section 1016 of the Code of 1907 says: "The operator or superintendent of every coal mine, whether shaft, slope, or drift shall provide and hereafter maintain, ample means of ventilation for the circulation of air through the main entries and all other working places to an extent that will dilute, carry off, and render harmless the noxious gases generated in the mines. It shall be the special duty of the inspector and his assistants to carry out the provisions of this section; and it shall also be the duty of each and every mine operator and mine boss to assist the inspector and his assistants in carrying into effect said provisions." This statute is not as terse and clear as it might be, but it was evidently the intention of the Legislature to require mine operators and superintendents to keep their mines ventilated to the extent of rendering them harmless from noxious gases generated therein. The Legislature meant more than merely requiring the nondelegable duty of furnishing the means for ventilation, but made it the imperative duty of the operator or superintendent to so ventilate the mine as to render it harmless from noxious gases generated therein. This seems to be the view taken of the statute in the case of Foley v. Pioneer Co., 144 Ala. 178, 40 So. 273, and which case was decided before the re-enactment of the statute in the present Code. It is true that the said statute is not discussed at length in said case; but the opinion indicates very strongly that it was the imperative duty of the operator or superintendent, under said statute, to keep the mine ventilated for the purpose of carrying off and rendering harmless noxious gases generated therein. The statute was again so treated in the case of Sloss-Sheffield Co. v. Sharpe, 161 Ala. 432, 50 So. 52, and 156 Ala. 284, 47 So. 279.

Statutes of this character are designed for the purpose of protecting human life and should be so construed as to effectuate the legislative intent, and this section should not be so whittled down as to make it the imperative duty of the operator to supply only the means, but so as to require that he keep his mine harmless from noxious gases generated therein.

The trial court in ruling upon the evidence and in giving certain charges, requested by the defendant, proceeded upon the idea that the statute did not require the defendant to keep the mine ventilated, but merely required it to furnish and keep the means and appliances for ventilation, and in this there was error.

The judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

McCLELLAN, SAYRE, SOMERVILLE, and DE GRAFFENRIED, JJ., concur. MAYFIELD, J., dissents. DOWDELL, C.J., not sitting.

On Rehearing.

As stated in the original opinion, this statute (section 1016 of the Code of 1907) is not as clear as it might be, but it is reasonably susceptible of the construction given it, and which was given thereto in the Foley Case, supra, and, like all statutes designed for the protection of human life, should be so construed as to effectuate the beneficent purpose of the Legislature in passing same. This statute applies only to noxious gas generated in the mine and was intended to require the mineowner to fan it out, or to so ventilate his mine as to prevent all harmful results from said noxious gas. This statute does not make the mineowner an insurer, under any and all conditions, against mine explosions, or make him liable for certain unavoidable accidents, but is confined to injuries resulting from harmful noxious gases generated in said mine, and makes it his imperative duty to prevent an accumulation of same to the extent that it must not be harmful to the miners. It does not make him an insurer against gas not generated in the mine but which is released or enters therein from its natural state by moving the layers of coal which held it in the gas pockets.

It may be that the act of 1911 (page 515, § 40) recognizes a distinction between noxious and explosive gas and includes both, and, as is prescribes the amount of air to be supplied, the owner may meet the requirement of same when he supplies the requisite amount of air, but, as this case arose prior to said last act, it must be governed by the Code of 1907, and we will construe said last act when the occasion may arise for us to do so.

The Legislature, in adopting section 1016, was exercising a police power for the protection of human life and health, and we do not think that the said statute is so arbitrary or oppressive as to render it repugnant to the federal Constitution. Barrett v. State of Indiana, 229 U.S. 26, 33 Sup.Ct. 692, 57 L.Ed. 1050.

The application for a rehearing is overruled.

DOWDELL, C.J., and McCLELLAN and DE GRAFFENRIED, JJ., concur. MAYFIELD, SAYRE, and SOMERVILLE, JJ., dissent.

MAYFIELD J. (dissenting).

The opinion says, and the decision decides, that a mine-operator is imperatively required by the statute quoted and construed, to "keep his mine harmless from noxious gases generated therein"; that he does not discharge his statutory duty by providing and maintaining ample means for ventilating the mine.

If this is true, then the court ought to go further and declare the statute to be unconstitutional. The Legislature has no power to require a man to do that which he and no one else can do. Human genius, so far, has not been able to learn or devise any means to this end. If it be possible, no human being has yet discovered the mode or process of so doing. Science may hold it in store, but, so far, she has not revealed it to man--it is still a sealed book. If the Legislature can make a man do that which he cannot do, then the statute is all right; if it cannot, then it is all wrong. That is all there is, or can be, in the decision.

I say: First, the Legislature has not so provided; and , second, if it has, it is of no avail. It is both conceded and decided in the opinion that the statute is not clear to this end. It is apparent and unquestionable that the statute does not say what the court says it means, but the construction placed on it by what is said in the opinion is, that it is the imperative duty of the mineowner, and a nondelegable duty, to "keep his mine harmless from noxious gases generated therein." It is admitted that this was not the law before the passage of statute; and I suppose it will be conceded that it was never heretofore expressly so decided, though cases are cited as inferentially so deciding, and these cases this decision purports to follow. I think my Brothers are in error, as to what the cited cases decided as well as to the construction placed upon this statute.

It was expressly said by this court, speaking through the same judge and concurred in by the same judges that announced and concurred in the decision of this identical case on the original hearing (this being a rehearing), that the statute in question does not mean what it is now held to mean; and it has been decided by this court, in another case construing the same provision of the same statute, that it does not mean what the court now says it means; and in one of those cases the decision was reached and adhered to on both hearings, and this is probably some excuse for my being unable to agree to this decision or concur in the opinion.

On the first hearing in this case it was said: "The duty of operating the ventilating appliances is delegable; and if the master provides and maintains sufficient appliances to dilute, carry off, and render harmless the noxious gases, he complies with the statute. The word 'maintain,' as used in this section, does not mean 'operate,' and the statute cannot be properly construed so as to make the master an absolute insurer against harmful, noxious gases generated in the mine, by giving this word such a meaning. Had it been the intention of the Legislature to make the mineowner an absolute insurer, they would have said so in plainer and fewer words." I confess my inability to show the error of the present holding in stronger or plainer terms than those quoted above; and another case has been put out by this court, at this term, deciding the same thing, which I suppose will be recalled and corrected if the present decision and opinion is allowed to stand. The only thing I desire to add to the above is that it is admitted in this opinion that the statute changes the common law in this respect, and it is admitted that the statute is...