Williams v. Alabama Fuel & Iron Co.

• Decision Date: 30 October 1924
• Docket Number: 7 Div. 411
• Citation: 212 Ala. 159,102 So. 136
• Parties: WILLIAMS v. ALABAMA FUEL & IRON CO.
• Court: Alabama Supreme Court

102 So. 136

212 Ala. 159

WILLIAMS v. ALABAMA FUEL & IRON CO.

7 Div. 411

Supreme Court of Alabama

October 30, 1924

Rehearing Denied Nov. 20, 1924

Appeal from Circuit Court, St. Clair County; O.A. Steele, Judge.

Action for damages for wrongful death by Mary Williams, as administratrix of the estate of Mike Harris, deceased against the Alabama Fuel & Iron Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

In action for death of employee in mine explosion direct examination of witness as to testimony in another case arising out of same explosion, "Did you testify not only as an expert, but as to the actual facts in that case?" held properly excluded as irrelevant.

These charges were given at defendant's request:

"(5) The court charges the jury that, if you believe from the evidence that Mr. Tate told plaintiff's intestate, at the mouth of the mine, the morning he was injured, in substance, that there was gas in rooms 51 and 52 where plaintiff's intestate had been working, then I charge you that plaintiff cannot recover."

"(13) I charge you that the burden is upon the plaintiff to reasonably satisfy you from the evidence that her intestate, Harris, was working in a place in the mine where he had the right to work, and, if she has not reasonably satisfied you from the testimony that he had the right to go into the place into which he did go, when injured, on the morning he was injured, then I charge you that she cannot recover."

"(24) If you believe from the evidence that Tate, the fire boss, told plaintiff's intestate, at the mouth of the mine, the morning he was injured, that there was gas in the room where intestate had been working, then I charge you that plaintiff cannot recover."

"(30) The court charges the jury that, unless plaintiff has reasonably satisfied you from the evidence that the fire boss in substance told her intestate on the morning he was injured that the working place into which he entered that morning was all right or free from gas, the plaintiff cannot recover."

"A. The burden is upon the plaintiff to reasonably satisfy you from the evidence that Mike Harris, at the time he was burned, was in his proper place, and, if you believe from the evidence that he entered room 51 for the purpose of getting his tools, and after Mr. Tate had instructed him not to do so, then I charge you that plaintiff cannot recover."

W.A Denson, of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

MILLER J.

This is a suit for damages by Mary Williams, as administratrix of the estate of Mike Harris, deceased, against the Alabama Fuel & Iron Company, a body corporate, for the death of her intestate, proximately caused by the negligence of the defendant.

There was a verdict by the jury in favor of the defendant, and from a judgment thereon by the court this appeal is prosecuted by the plaintiff. This cause has been here before. See report of it in 207 Ala. 99, 91 So. 879; Haywood v. Ala. F. & I. Co., 203 Ala. 550, 84 So. 259; Ex parte Ala. F. & I. Co., 193 Ala. 496, 69 So. 115.

There are three counts in the complaint. Each was submitted to the jury, and each averred her intestate was an employé of the defendant. The first count averred negligence on the part of the defendant in negligently failing to provide a reasonably safe place for her intestate to perform his duties in its mine under his employment. The second and third counts charged a violation of the state mining act, which requires the operators of coal mines to provide and maintain ample means of ventilation. Gen.Acts 1911, p. 516, § 40.

The second count charged the negligent failure of defendant to comply with this statute, and the third count charged the violation of the statute, treating its violation as negligence per se. The defendant filed to each count two pleas. No. 1 is the general issue, and No. 3 is a special plea of contributory negligence. There are 411 errors assigned, and assigned error No. 411, the last one, is the judgment of the court overruling demurrers of plaintiff to this contributory negligence plea, No. 3. It is assigned and argued last, but we will treat it first, because the issue should be first determined. This plea reads as follows:

"(3) Plaintiff's intestate was guilty of contributory negligence which proximately contributed to cause the injuries which resulted in his death, in that intestate negligently entered into, or dangerously near to, a place in defendant's mine, namely, the place in defendant's mine where said explosion occurred, in which he had been notified in person, a few minutes before said explosion, by the fire boss that gas existed in dangerous quantities: and as a proximate result of his negligence in such regard his injuries were received."

That part of the penal statute set up in this plea is found in section 32, p. 513, Acts 1911, and provides:

"It shall be a misdemeanor for any person to enter in or dangerously near to any place in the mine in which he has been notified in person that gas exists in dangerous quantities."

The title of the act containing this provision is stated as follows: "To regulate the mining of coal in Alabama;" and it is evident it was enacted for the benefit and protection of owners, operators, and employés of coal mines, a class to whom this penal provision necessarily applies, and it was enacted also for the benefit of the owner or operator of the mine, the defendant in this case, who seeks to invoke its violation, as distinguished from the public generally. Reynolds v. Woodward Iron Co., 199 Ala. 231, headnote 2, 74 So. 360.

A penal statute may be set up as a defense to a simple negligence count, if its violation by the plaintiff contributed proximately in causing the injury complained of; but "the statute or ordinance violated, however, must have been enacted for the benefit of the party who seeks to invoke its violation, as distinguished from the public generally, or a class to whom the ordinance necessarily applies." Watts v. Montgomery T. Co., 175 Ala. 102, 106, 57 So. 471.

This penal statute was enacted primarily for the benefit of mine owners or operators and their employés, and the defendant has the right to set its violation up as a defense to the simple negligence counts in this complaint. The violation of a penal statute is negligence per se; but, as a good defense in a contributory negligence plea, it must aver facts showing its violation by plaintiff contributed proximately in causing the injury alleged. Mobile Lt. & R. Co. v. McDonnell, 207 Ala. 161, 92 So. 185; Wilson v. L. & N.R. Co., 146 Ala. 285, 40 So. 941, 8 L.R.A. (N.S.) 987; City Ice & Del. Co. v. Lecari, 210 Ala. 629, 98 So. 901; and authorities supra.

Each count in the complaint alleges the injury producing death was caused by gas explosion in the mine. This plea alleges facts showing the statute was violated by the plaintiff; it alleges the fire boss, a few minutes before the explosion, notified, in person, the plaintiff that gas existed in dangerous quantities at the place where the explosion occurred, and that plaintiff then negligently entered into or dangerously near this place, and as a proximate result of his negligence in such regard his injuries were received. The plea avers facts showing the statute was violated by plaintiff; it avers it was negligently violated by plaintiff; and it avers, as a proximate result of this contributory negligence of plaintiff, his injuries were received. This plea sets up sufficient facts to constitute a good contributory negligence defense to the simple negligence counts in the complaint, and the court did not err in overruling demurrers of plaintiff to it. Authorities supra.

The decedent, Mike Harris, and Will Hatcher, were "buddies" working for defendant in its mine. Their rooms were known as Nos. 51 and 52 in 8 north heading. There was a gas explosion in these rooms in December, 1912; Mike Harris was burned by it, from which he died. A few days, two or three, before the explosion, gas was found in these rooms, and Mike and Will were notified that gas was there, not to go in them, it was dangerous, and they were assigned work in another place in the mine. These rooms were free from gas prior to that time.

The evidence is in conflict as to the cause of the accumulation of this gas in these rooms. The different theories indicated by the testimony, and the responsibility for it, whether on defendant or decedent, as shown by the tendencies of the evidence, we need not discuss. The evidence of the plaintiff tended to show, on the morning of the explosion, as decedent and Will Hatcher went to the mouth of the mine, they were notified in person by the fire boss, Mr. Tate, that their rooms, 51 and 52, were free from the gas, and they could return there to work, and as Mike Harris entered his room with a lighted lamp the gas ignited, there was an explosion, he was burned, and afterwards died from the injury. The evidence for the defendant tended to show, when Mike and Will went to the mouth of the mine that morning, the fire boss, Mr. Tate, informed them in substance that gas in dangerous quantities was in their rooms, 51 and 52, and they must not go there, and Mike replied his tools were there and he was going to get them, and he was told by this fire boss not to do so; and that Mike, against these instructions of this fire boss, went with lighted lamp to these rooms for his tools, or to work; the gas becoming ignited from the lamp, causing the explosion which injured him causing his death.

Will Hatcher testified that he and Mike Harris after the explosion were in the hospital together, and that he had not seen him since the day "I heard he was dead." The court would not then permit witness to...