Alabama Consolidated Coal & Iron Co. v. Heald

53 So. 162 | Ala. | 1910

Lead Opinion

EVANS, J.

This is the second appearance of this cause in this court, on appeal taken by the defendant. The original complaint was composed of only one count, the foundation to which was negligence of the master (defendant) in not furnishing the servant (plaintiff’s intestate) a reasonably safe place wherein to perform the duties required of him as such servant. At the first trial count No. 3 was added by way of amendment. This count is founded upon subdivision 3 of the employer’s liability act (Code 1896, § 1749).

The point of supreme importance litigated on the former appeal was whether or not the amended count fell within the lis pendens, so as to cnt off, or render inapplicable, the defense of the statute of limitations. Perhaps no cause has ever been more ably represented or briefed than was this, on the first appeal; and we are quite sure that no cause has ever been given more careful consideration in this court, than was accorded this one, by the court en banc, on that occasion. After the point at issue had been debated, in all its phases, in consultation, and consideration as above referred to had been given the cause by the court, the majority of the Justices reached the conclusion (expressing it in an opinion by Anderson, J.) that the amendment came within the lis pendens, and decided the point against the appellant; while the three remaining Justices, in an opinion by Dowdell, J., took the opposite view.—Alabama, etc., Co. v. Heald, 154 Ala. 580, 45 South. 686. Now, the identical question determined against the appellant on the first appeal is again presented for decision. Counsel for appellant have filed an elaborate and able brief, in support of their contention that the conclusion reached by the court on the former appeal is erroneous and should be departed from.

We recognize the fact that the statute frees the court from the “law of the case” rule, and affords the privilege of departing from a former ruling if the court should become convinced of error in that ruling. — Code 1907, § 5965. But after giving the brief and argument of appellant that consideration to which it is entitled, and after examining the authorities, the court is not convinced that its former ruling is unsound or should he repudiated.

This conclusion finds support in the fact that, since the promulgation of the former decision, it has been several times cited and followed by. this court.—Townes v. Dallas Mfg. Co., 154 Ala. 612, 45 South. 696; A. & B. A. R. v. Wheeler, 154 Ala. 530, 46 South. 262; Central of G. Ry. Co. v. Sturgis, 159 Ala. 222, 48 South. 810; Ala. Const. Co. v. Watson, 158 Ala. 166, 48 South. 506. See, also, on the subject of amendments relating back, Alabama Terminal, etc., Co. v. Hall, 152 Ala. 262, 44 South. 592.

Now, should we not recognize and appreciate the necessity for stability and uniformity in the construction and interpretation of the law?

“It is too evident to require discussion that the interests of the state and of the individual and the proper administration of justice require that there should be settled rules in these matters.”—26 Am. & Eng. Ency. Law, 160; Snider v. Burks, 84 Ala. 57, 4 South. 225; Morton’s Case, 79 Ala. 616; Herstein v. Walker, 85 Ala. 37, 4 South. 262.

The court adheres to its former ruling upon the point sub judice.

We deem it unimportant that the court allowed an amendment, by the addition of count 5 to the complaint. It neither added to nor detracted from, the complaint as it stood when this count was added. It is identical with count 3 of the complaint. It may be that it would have been better practice to retry the case on the settled pleadings; these having been pronounced sufficient by this court-. But there was no prejudicial error in refusing to strike it. In Huggins v. Southern Ry. Co., 148 Ala. 153, 41 South. 856, the court said,: “It would be error AVithout injury to deny the amendment, if it was but a repetition of Avhat Avas in the original complaint.” The rule works both ways. If the trial court alloAvs an. amendment, it is not reversible error, even though the appellate court might think the amendment unnecessary.—Postal, etc., Co. v. Likes, 124 Ill. App. 459, 466; Com. Nat. Bank v. Gibson, 37 Neb. 750, 56 N. W. 616.

Finally, the plaintiff amended the complaint by withdrawing all the counts except those numbered 3 and 5, and the cause Avas tried on these counts, and on the pleas of the general issue, contributory negligence, and assumption of risk.

It Avill probably serve a useful purpose if we bring the negligence relied upon in the complaint immediately in view; and this we do by transcribing the averments, in this respect, contained in count 3: “Plaintiff avers the death of his intestate to have been proximately caused by reason of the negligence of James Dunn, a person in the service or employment of the defendant, to Avhose orders or directions plaintiff’s intestate, at the time of his death, was bound to conform and did conform, and his death resulted from him having so conformed, which negligence consisted in this: The said Dunn negligently ordered plaintiff’s intestate to go down into the defendant’s mine at a time when said mine contained a large and dangerous quantity of suffocating gas.”

The plaintiff’s intestate lost his life in defendant’s mine during the night of April 11, 1905. He Avas employed by the defendant to run its air compressor. It Avas also shoAvn that James Dunn Avas defendant’s master mechanic at the time, and that the intestate Avas subject to Dunn’s orders. The compressor compressed air into a receiver (a large tank or boiler) located on the outside of the mine, and from the receiver the air ivas distributed by pipes through the mine and was utilized as a motive power, in running pumps, drills, etc., in the mine. The testimony tended to show that the receiver was extraordinarily hot — as hot as a cook stove — just before, and at the time the deceased went into the mine. It was also shown that such heated condition of the receiver “would indicate to the master mechanic that there was something wrong; it would indicate that it was afire.” It was also shown, by witness Steele, that: “If the receiver was ‘on fire’ it would produce poisonous gas. This poisonous gas would go out where-ever you should happen to open it first. It would be opened on the inside of the mine, and when opened that gas would be distributed through the mine.” It was shown that the gas produced (if the receiver was as hot as stated) would be carbonic dioxide gas, and that this gas is suffocating. Steele’s testimony further tended to show that if the receiver was as hot as a cooking stove, such degree of heat would indicate to the master mechanic that the air that was being forced into the mine was reduced to the poisonous gas — carbonic dioxide.

Dunn, defendant’s master mechanic, was near the receiver, and the evidence tends to show that he saw it, and was cognizant of its superheated condition at the time.

Plaintiff’s witness Enslen testified: “I had never-seen the receiver so hot. as it was that evening. I was present at the time Mr. Heald (deceased) went -into the mine. I heard Mr. Dunn tell him to put on his boots and go in the mine and start the pump; as well as I remember that is what he said.” At this juncture, the bill of exceptions recites plaintiff’s counsel asked the witness this question, “State what Dunn told him,” and witness in answer said: “I don’t remember. It is my best recollection he said it was perfectly safe.”

The court’s action in overruling the motion to exclude this answer may be justified upon two or more-grounds : In the first place, no objection was interposed to the question, and the answer is responsive.—Mobile, etc., R. Co. v. Bromberg, 141 Ala. 258, 280, 281, 37 South. 395. Again, it was a part of the res gestae of the intestate’s going into the mine and of the order given to him to go into the mine. Furthermore, in view of the pleas of contributory negligence and assumption of risk filed by defendant, the testimony was competent and was properly allowed.—Southern Ry. Co. v. Guyton, 122 Ala. 231, 25 South. 34; Pioneer, etc., Co. v. Smith, 150 Ala. 356, 43 South. 561; Southern Ry. Co. v. Howell, 135 Ala. 639, 34 South. 6.; Tennessee, etc., Co. v. George, 161 Ala. 421, 49 South. 681. This disposes of the twelfth, twenty-fifth, and twenty-sixth grounds of assignment of errors.

Witness Steele testified that he had been a machinist 15 or 20 years; that he had once been in the employment of the defendant and had charge of its machinery at the mine two- years. “I know what the air receiver is, there at the mine. It is a big boiler or tank at the mouth of the mine, that the air is pumped into it before it goes into the mine. If that receiver was as hot as a cook stove, it would indicate that there was something wrong. It would indicate that it was afire.”

Plaintiff’s counsel then asked witness this question: “Now, what is it in the receiver that would be afire?” And the witness answered: “Why, it might be oil in there; most of the oil that is used to oil the compressor stops in the receiver. If the receiver was on fire, why it would produce gas in combustion without oxygen. It would produce poisonous gas. The poisonous gas

would go out wherever you happened to open it first. It would be opened on the inside of the mine, and when opened it would be distributed inside the mine. Mr. Dunn was master mechanic a.t defendant’s mine. I held the same position that Mr. Dunn held at this mine for nearly two years, and before the accident to Heald. 1 have some knowledge of chemistry. If you bring an inflammable substance in contact with air, and that air is inclosed in a receiver as the one here used, and if the substance catches afire in the receiver, and burns to such an extent that the receiver is as hot as a cook-'stove, that would form carbonic dioxide. This kind of gas is suffocating.” Plaintiff’s counsel here asked the witness: “Now, Mr. Steele, if the receiver was as hot as a cook stove, would that indicate to the master mechanic that the air that was being forced into the mine had been reduced to this poisonous gas of which you spoke a few moments ago?” Defendant objected to this question. That the testimony called for was relevant, material, and legal matter seems to be a proposition to demonstrate the correctness of which argument is unnecessary. But it is insisted that the question called for expert testimony, and that the witness was not shown to be qualified to testify as an expert.

To entitle a witness to answer as an expert, it is true “he must, in the opinion of the court, have special acquaintance with the immediate line of inquiry; yet he need not be thoroughly acquainted with the differentia of the specific specialty under consideration. If this were necessary, few experts could be admitted to testify; certainly no courts could be found capable of determining whether such experts were competent. A general knowledge of the department to which the specialty belongs would seem to be sufficient.”—1 Whart. on Ev. (2d Ed.) p. 386, § 439; Washington v. Cole, 6 Ala. 212; Gulg City Ins. Co. v. Stephens, 51 Ala. 121, 123. Furthermore, the sufficiency of Steele’s experience and knowledge of the subject inquired about was a matter addressed to the discretion of the court, and the ruling in respect thereto should not be here disturbed unless it clearly appears to have been erroneous. — - Authorities supra. See, also, Parrish’s Case, 139 Ala. 16, 42, 36 South. 1012; Braham’s Case, 143 Ala. 28, 41, 38 South. 919. We are of the opinion, and hold, that the evidence that Steele was an expert was prima facie' sufficient, and that the court cannot be put in error for allowing the question.—Washington v. Cole, supra; Wearer v. Ala. Coal Min. Co., 35 Ala. 176, 183, 184.

The objection that the question called for matter for the determination of the jury is not meritorious; neither is there merit in the motion to exclude the answer of the witness to the question.

After testifying that the conditions referred to above should indicate to the master mechanic, Dunn, “that there was something radically wrong, and if it were allowed, to proceed to a certain point it would produce carbonic dioxide gas,” the witness Steele was asked this question, “Would it be safe, Mr. Steele, to go down into the mine when that condition existed?” We have passed upon the ruling of the court in respect to the witness’ competency as an expert; but it is argued that the matter here referred to (the safety or not of going into the mine) was one to be determined by the jury after the witness had informed them of the presence of carbonic dioxide gas in the mine, and that it was poisonous and suffocating, and that the witness should not have been allowed to substitute his judgment for that of the jury, on the question.

It is true that the question of safety vel non of going into the mine was to be determined by the jury; but we cannot agree with counsel that the testimony called for was not within the rule of opinion evidence. The jury was not concluded by the opinion of the witness, but it was testimony to be considered by them in the reaching of their conclusion. There was no error in the ruling.

The foregoing considerations dispose of all the assignments of error in respect to the rulings of the court on the admissibility of testimony, and we come now to consider the grounds of error insisted upon, which challenge the correctness of certain portions of the oral charge of the court excepted to, and the rulings of the •court in refusing written charges requested by the defendant.

The court, in its general charge, amongst other things, instructed the jury as follows: “Now, gentlemen, I may state a few general principles to you before I go further: (Mere negligence which gives' a right of action is the doing of an act, or the omission of an act, which results proximately in damage to another, without any intent to do wrong or cause injury [and it must be in a case where the defendant owes the injured party — the deceased man in this case — a duty, owes him a duty.] Negligence is any lack of carefulness in one’s conduct to whom he owes a duty, which in doing or omitting to do proximately contributes to the injury of another in his person or property without intent to inflict such injury. That is simple negligence, gentlemen), and simple negligence is the only negligence charged in either of these counts.” The defendant excepted to the whole of the above extracts embraced within parentheses, and also separately to that inclosed within brackets.

The argument against the charge is founded upon the case of Alabama City, G. & A. Ry. Co. v. Bullard, 157 Ala. 618, 47 South. 579, wherein a somewhat similar charge was criticised as being “inaccurate and too broad,” and as furnishing no standard by which to measure the degree of care by law required to be exercised. The court said: “We prefer as a more accurate definition of negligence, assuming the existence of a duty, that stated in Words & Phrases, vol. 5, p. 4744: ‘The failure to do what an ordinarily prudent person would have done under the circumstances, or the doing of that which an ordinarily prudent person would not have done.’ ”

The court did not in that case expressly declare that giving of the charge constituted reversible error; a preference simply was expressed for the definition quoted from Words and Phrases. And when we consider that case in connection with the case of Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 202, 216, 40 South. 280, of the existence of which case the court is presumed to have been cognizant, we are led to believe that the court did not intend to declare the charge as constituting reversible error. In the latter case the court orally charged the jury that: “Negligence is the wrongful doing of an act or the wrongful omission to act, which results in damages, but without intent to do wrong or cause damage. Under this definition it is not necessary, nor does the law require that an intent to do wrong, or an intent to cause injury, should be shown.” And of this instruction our court said: “In considering a part of the charge of the court, it must be taken in connection with the remainder of the charge. Under the facts in this case, and in connection with the entire-charge of the court, we cannot say that there was reversible error in this definition of ‘negligence.’ While it is not an exhaustive definition, yet, on a review of the numerous attempts of courts and text-writers to define negligence, it seems to be almost impossible to give a definition in one sentence which will cover the conditions of every case.” But, whatever may have been or might be the ruling of the court in respect to the charge constituting reversible error' if it were isolated, we find that the instant case falls directly within the principle adhered to in the last case quoted from, that the charge excepted to must he considered in connection with the remainder of the charge and the facts; and when so considered, that ifi does not form the basis for reversible error. Moreover, the court, at the request of the defendant, gave charges 48 and 51, which conform to the definition of negligence laid down and as preferred in the case of Alabama City, etc., Co. v. Bullard, supra. These relieved the charge given of misleading tendency affecting defendant, and the court is of the opinion that reversible error cannot be predicated of the parts of the oral charge under review.

A large number of charges were given for the defendant, and to it a large number were refused. As we shall refer to the fact that some of the refused charges are substantial duplicates of some that were given, we will quote in advance from the case of L. & N. R. R. Co. v. Hurt, 101 Ala. 34, 49, 13 South. 130, 134, what was there said by the court in respect to duplicate charges: “Section 2756 of the Code (1886), which pro-wides that ‘charges moved for by either party in writing must be given or refused in the terms in which they are written,’ was not intended to license either party to move for charges ad infinitum. A court will not be in error for refusing charges which are mere repetitions of charges which have been given, and a mere variation in the use of the words, which ‘hideth counsel,’ and which in ho way change the meaning or assert different principles from those given, will not affect the rule.”

If the court had given charges 10 and 16, requested by the defendant, such action of the court might not have constituted reversible error, though it is not necessary to decide this point. Each of these charges contains the hypothesis that, if “plaintiff’s intestate negligently went to said point”; but neither of them contains any definition or standard by which the jury might determine whether or not the action, or the lack of action, on the part of the intestate, would constitute negligently going to “said point.” Thus a question of law would have been submitted for the determination of the jury if the charges had been given.—Herbert v. Hanrick, 16 Ala. 581, 594; Stanley v. Bank of Mobile, 23 Ala. 652, 657; Dickson Bros. v. Bamberger, Bloom & Co., 107 Ala. 293, 299, 300, 18 South. 290; Doe v. Edmondson, 145 Ala. 557, 567, 40 South. 505; Strickland v. State, 151 Ala. 31, 40, 44 South. 90; Barlow v. Hamilton, 151 Ala. 634, 638, 44 South. 657; Jones v. State, 79 Ala. 23, 25; Miller’s Case, 107 Ala. 40, 58, 19 South. 37.

The charges sub judice differentiate from those held good in Western Railway of Alabama v. Walker, 113 Ala. 267, 22 South. 182, in that the charges in that case, while they contain the terms, “without fault or negligence,” yet they set out in full the fact which, if found to be true, showed that the servants of the defendant company were guilty of no negligence. Moreover, in charges 58, 33, and 34, given for defendant, the propositions asserted in charges 10 and 16 are duplicated, and appear in a form more favorable to defendant than that in which they are stated in charges 10 and 16.

The criticism leveled at charges 10 and 16 is applicable also to refused charge 13. Moreover, the latter charge finds a substantial duplicate in charge 33, given at the defendant’s request. Quiere: Is not charge 13 misleading, upon the considerations and authorities adverted to in Woodward Iron Co. v. Curl, 153 Ala. 215, 228, 44 South. 969? See, also, in this connection, A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84, 88 (headnote 15).

Without discussing the merits or demerits of charge 18, refused to defendant, the court is of the. opinion that it is a substantial duplicate of charge 33, given for the defendant, and that the defendant was not prejudiced by its refusal. The charge is also subject to the criticism, made of it by appellee’s counsel, that the contributory negligence hypothesized, is not confined to that pleaded.

Charges 20 and 21 were properly refused to the defendant. Twenty is rendered misleading, if not positively vicious, by the alternative, “or was not,” while 21 invades the province of the jury. Furthermore, the defendant was given full benefit of the principles sought to be stated in these charges, in given charges 32, 36, and 55.

While it was open to the jury to find from the evidence that Dunn told plaintiff’s intestate that he thought it was safe, it was likewise open to them to find that Dunn told intestate, without any qualifications, that it would he safe to go into the mine; therefore charge 11 was well refused. The charge qualifies the assurance of safety, by the evidence authorized to be found to have been given to the intestate, without regard to the tendency of the evidence in respect to the absolute form of the assurance.

In Southern Railway Co. v. Guyton, 122 Ala. 231, 241, 25 South. 34, this court said: “A,n employee is held by the law to the use of ordinary care for his own safety; so that, if he voluntarily undertakes to do work attended with danger which is obvious, he impliedly assumes the risk in its execution. It does not follow, however, that he is guilty of negligence in working merely because he knows the work to be dangerous without regard to the degree of danger and risk involved, nor unless it be of a degree which would ordinarily deter one of ordinary prudence from the undertaking”—citing Woodward Iron Co. v. Andrews, 114 Ala. 243, 21 South. 440; Eureka Co. v. Bass, 81 Ala. 200, 8 South. 216, 60 Am. Rep. 152. “The rule requiring the exercise of ordinary prudence applies in determining the question of negligence on the part of the plaintiff, and it also applies in fixing the charge of negligence upon the defendant, but with this additional consideration: That, in the matter of investigating a risk which is not plainly apparent in the nature of the work, the employer and employee do not always stand on the same footing, since the employee may to some extent rely upon the judgment of the employer, or of a supermini the same service. * * * This principle is applicable in this case, in connection with the plaintiff’s testimony to the effect that the transaction in question was not dangerous.”

And so, in the instant case, we find from the evidence that plaintiff’s intestate, in the presence of his superior, Dunn, was told by Enslen that it was not safe to go in the mine, and that Dunn immediately told the intestate to go ahead, that everything was all right. This was the only information in regard to the dangerous condition of the mine that the intestate had. It cannot be said, as matter of law, that this revealed the degree of danger at all, and certainly it cannot be said that it as matter of law revealed a degree of danger calculated to deter a person of ordinary prudence from the undertaking. And it would seem, under the circumstances, to be a harsh rule that would deprive the intestate of any reliance on the judgment of the superior in the same service, Dunn. But that is the effect of the proposition as announced in charge 11.—Kansas City, etc., Co. v. Thornhill, 141 Ala. 215, 228, 37 South. 412; Ala. Steel & Wire Co. v. Wrenn, 136 Ala. 475, 494, 34 South. 970; Pioneer, etc., Co. v. Smith, 150 Ala. 359, 43 South. 561.

In addition to the fact that charge 9 pretermits all consideration of the order of Dunn to the intestate, if the jury should find that Dunn ordered him to go into the mine, the charge is a substantial duplicate of charge 58, given for the defendant.

Reversible error cannot be predicated of the court’s refusal to give charges 22 and 4. Each of them is argumentative.—Salm’s Case, 89 Ala. 568, South 66; Matthews’ Case, 100 Ala. 46, 14 South. 359; Hawes’ Case, 88 Ala. 37, 7 South. 302; Riley’s Case, 88 Ala. 188, 7 South. 104; Snider v. Burks, 84 Ala. 53, 4 South. 225; East Tenn., etc., Co. v. Thompson, 94 Ala. 634, 639, 10 South. 280.

The action of the court in refusing charge 5 does not constitute reversible error. It was calculated to mislead the jury, and called for- explanation. Charges possessing the vices named may be refused by the trial court without prejudicial error, “although on dissection they may assert legal propositons.”—Carter v. Chambers, 79 Ala. 223; L. & N. R. R. Co. v. Hall, 87 Ala. 708, 723, 6 South. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84; 2 Mayf. Dig. p. 574, § 228; Id., p. 573, §§ 207, 215; Jones’ Case, 79 Ala. 23.

It is true that the evidence shows that the only noxious gas in the mine was that which was transmitted from the receiver into the mine, and it is also true that, unless Dunn, at the time he ordered Heald to go into the mine, knew, “or was in position, by the exercise of reasonably prudent care, to know of the presence” of such gas (Robinson Mining Co. v. Tolbert, 132 Ala. 462, 466, 31 South. 519), negligence could not be predicated of the giving of the order; and it may be that charge 26 asserts a correct proposition, but- this last point we do not determine, for the reason that, whether it does or not assert the law correctly, the court is fully persuaded that the defendant had the benefit of all that it was entitled to, in this respect, in given charges 30, 49, 50, and 59. “In the matter of investigating a risk which is not plainly apparent in the nature of the work, the employer and employee do not stand on the same footing, since the employee may to some extent rely upon the judgment of the employer, or of a superior in the same service.”—Southern Railway Company v. Guyton, 122 Ala. 231, 241, 25 South. 34, 38; Dresser, Employers’ Liability, p. 531.

Furthermore, in this' case it cannot be said that the danger was open and obvious. To the contrary, knowledge of its existence depended, to some extent, upon technical knowledge. The proof shows that Dunn was the master mechanic, and it tends to show that the heated condition of the receiver would indicate to him that noxious gas was in the mine; hut it cannot be said that the evidence tends to show that the heated condition of the receiver indicated to Heáld that noxious gas was being transmitted into the mine. Therefore, the hyhopthesis of equal opportunity, contained in the charges, may be said to be abstract. But, however this may he, the law is that, if the danger is not patent, the master and servant are not equally chargeable with knowledge of its existence, although they may have equal opportunities to ascertain it. This is true for the obvious, reason that the duties resting upon them to search for or discover it are not the same. — Dresser, Employers’ Liability, 531.

As was said in Pioneer Mining Co. v. Smith, 150 Ala. 356, 359, 43 South. 561 (quoted approvingly from Bailey on Personal Injuries, § 899) : “Master and servant do not stand upon equal footing, even when they have equal knowledge of the danger. The position of. the servant is one of subordination and obedience to the master, and he has the right to rely upon the superior skill of the master, and is not entirely free to act upon his suspicions of danger. If a servant, being ordered into a position, obeys and is injured, he will not be held to be guilty of contributory negligence, unless the danger is so glaring that a reasonably prudent person would not have entered into it.”

Manifestly, under the charges sub judice, Nos. 1, 2, and 3, the assurance of safety extended by Dunn to Heald would have been of no avail' to Heald. The charges eliminating the right of reliance, to any extent, by Heald upon the judgment of his superior, the assurance in short amounted to nothing.

Upon the foregoing considerations and authorities the court holds that the charges mentioned are either positively bad or misleading in their tendencies, and that the trial court committed no error in refusing them.—Reiter-Connolly Mfg. Co. v. Hamlin (charge 2 given for plaintiff) 144 Ala. 193, 40 South. 280.

Charge 24, refused to defendant, is as follows: “The court charges the jury that if they believe from the evidence in this case that the gas or impure air which caused Heald’s death, if the jury find that his death was so caused, was confined in the iron pipes which extend from the air compressor and receiver into the mine, and which carried the compressed air into the mine, and that such gas or impure air was released by Heald at the pump in his efforts to fix the pump, and that Heald’s death resulted therefrom, then their verdict must be for. the defendant.”

The brief of appellant begins the argument in support of this charge in these words: “This charge raises the proposition that, if the mine did not contain a large and dangerous quantity of suffocating gas at the time Dunn is alleged to have ordered Heald to go into it, then plaintiff would not be entitled to recover because of failure to establish a material averment of the complaint. It also raises the proposition of a variance, provided the jury should find that Heald’s death was caused by the foul air escaping from the pump after he had reached it and was attempting to fix it, for if this were the case then the allegation of the complaint as to the mine’s containing a large and dangerous quantity of gas would not be established by the evidence.”

This charge, in its final analysis^ means that notwithstanding Dunn, at the time he ordered the intestate to go into the mine and adjust the pump, knew that the pipes in the mine were full of suffocating gas, which would, when released from the pipes, be dangerous to human life, and that it was liable to be released, in the effort to adjust the pump, still plaintiff could not recover. In other words, it seems to us the charge in effect asserts the proposition that, although the order was negligently given, and that in his effort to obey it plaintiff’s intestate lost his life by inhaling suffocating gas that was in the mine, yet there could be no recovery. The argument of appellant, as stated, proceeds upon the theory that proof that gas was in the pipes located in and running through the mine cannot be construed as supporting the averment of the complaint that “said mine contained a large and dangerous quantity of suffocating gas.” This is indeed a literal and strict interpretation of the complaint, and one, we think, too subtle for practical purposes in the administration of the law. To illustrate: According to the theory of appellant, if the allegation had been that the mine contained a large and dangerous quantity of dynamite or powder, and the subtance was found in the mine, but incased in a keg or barrel, there would be a fatal variance between averment and proof. This, it must be conceded, would be too unsubstantial for recognition by the' courts, in the administration of justice. “Where a description in the pleading and that in the proof are not repugnant, but are the same as far as the proof goes, and the proof is not of another and different location from that set-out in the pleading, there is no variance.” — 22 Ency. PI. & Pr. 589. The charge was properly refused.

Charges 27, 28, and 29, refused to defendant upon the considerations above adverted to, were also properly refused.

Construing that part of the oral charge of the court, the correctness of which is challenged by the sixtieth ground in the assignment of errors, in connection with the remainder of the oral charge on the same subject, we fail to find therein reversible error.—Montgomery & Eufaula R. R. v. Stewart, 91 Ala. 421, 427, 8 South. 708; Postal, etc., Co. v. Hulsey, 132 Ala. 444, 461, 31 South. 527.

The grounds of error assigned, covering the refusal of the court to grant a new trial, are disposed of in the discussion which has gone before.

No reversible error having been found, the judgment of the court below must be affirmed.

Affirmed.

Simpson, Mayfield, and Sayre, JJ., concur.

The foregoing opinion in this cause was prepared by Justice Denson, before his retirement as Associate Justice, and, having been adopted in consultation, it is now announced as the opinion of the court.

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Rehearing

UPON REHEARING.

PER CURIAM.

Upon a reconsideration of this case, this court is of the opinion that so much of the oral charge as was excepted to, and which attempted to define negligence, was erroneous, in that it was too broad and held the defendant to too high a degree of care and responsibility. It pretermitted charging the defendant only with that degree of care as should have been exercised by an ordinarily prudent person under the circumstances.—Ala. City R. R. Co. v. Bullard, 157 Ala. 618, 47 South. 578. Nor does it appear that this error was cured by other parts of the oral charge. As the definition given by the court amounted to error as distinguished from mere misleading tendencies, it was not susceptible of correction by giving requested written charges.

We also think that charges 10 and 16, refused to the defendant, should have been given.

The trial court also erred in refusing charge 24, requestéd by the defendant, for the reason set forth in the dissenting opinion of Anderson and McClellan, JJ.

For the errors heretofore mentioned, a rehearing must be awarded, the judgment of affirmance set aside, and the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., not sitting.

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Dissenting Opinion

ANDERSON, J.

(dissenting). — I think the trial court committed reversible error in refusing charge 24, requested by the defendant. It was not abstract and hypothesized a state of facts, which, if true, would create a variance fatal to the averment of the complaint.

The gravamen of the complaint was that Dunn negligently ordered the intestate to go down in the mine, which contained a large and dangerous quantity of gas, and which caused the death of the intestate. If the death was caused by gas let into the mine, by the deceased, by opening the cock after he got down into same, his death did not result from the cause ascribed in the complaint. It is true the gas may have been in the pipes, and the pipes may have been in the mine, but so long as it was confined in the pipes, and did not escape therefrom until the intestate let it in, it could not be said that the mine contained a large and dangerous quantity of gas when intestate was ordered down, and that this death was so caused, as charged in the complaint. According to the hypothesis of the charge, the deceased would not have been killed but for the fact that he let the gas into the mine after he went down.

I therefore dissent, and McClellan and Evans, JJ., concur.