81 Ala. 200 | Ala. | 1886
— The action is brought for the alleged negligent killing of the plaintiff’s intestate, one Moyle, an employee of the defendant, which occurred whiíe the deceased was engaged in superintending the blasting of iron-ore in the defendant’s mine, and was produced by the explosion of dynamite used in the process of blasting. The accident occurred in December of the year 1884. The preparation for blasting was conducted by drilling a long narrow hole in the iron-ore rock, five or six feet deep, and about one and a half or two inches in diameter. In this cavity was inserted a dynamite cartridge, to which were attached a percussion cap and a fuse.
The negligence specially alleged on defendant’s part was in failing to supply a good quality of fuse, after notice of an existing defect, which rendered the further use of this material dangerous to the employees, a fact well known to the deceased. The deceased remained in the service of the defendant five or six days after acquiring knowledge and giving notice of the defect, before he was fatally injured— his death being caused by his entrance into the mine about twenty minutes after the lighting of the fuse, under the belief that the fire communicated to it had been extinguished. Good'fuse was shown to ordinarily produce an explosion of the dynamite in from two to three minutes under similar circumstances. The main defense relied on is that of contributory negligence on the part of Moyle, the deceased.
The employer or master is bound to use due care and diligence, not only to furnish in the first instance, but to maintain, suitable and safe material, machinery and instrument
The two points most earnestly, pressed upon us are : (1) That the conduct of the deceased, in entering the mine within so short a time as twenty minutes from the moment of setting fire to the fuse, must, as matter of law, be adjudged by the court to be such negligence as to bar a recovery in this case, such conduct, as is argued, being reckless, and contributing proximately to the death of the deceased : (2) That, even if this is not so, the deceased was guilty of contributory negligence by continuing in the defendant’s service for an unreasonable length of time after notice given, and the failure of the defendant to repair the defect complained of as existing in the fuse.
The first contention does not strike us favorably. We can not say, considering only the undisputed testimony of the case, that it is so free from doubt as to admit of no other rational inference except that of negligence, or that different minds could not reasonably draw opposite conclusions from these facts touching the question of Moyle’s negligence in prematurely entering the mine by which he was brought to his death. The inference of negligence not being clear and certain, the question of its existence was not a question of law, but of fact, and as such was properly left to the determination of the jury.— City Council of Montgomery v. Wright, 72 Ala. 411; L. & N. R. R. Co. v. Allen, 78 Ala, 494. The demurrer to the several counts of the complaint was for this reason properly overruled ; and so, likewise, there was no error in refusing the general charge requested by the plaintiff.
The second proposition is one which is not entirely free from doubt, and upon which the authorities are not harmonious. In fact, it does not seem to have been clearly considered, or stated with any great degree of precision in
This charge was, in our opinion, a correct enunciation of the law as applicable to the case, and should have been given.
The employee or servant, must be charged with the exercise of ordinary prudence. He is not compellable, nor is it prudent for him, to remain in the service of his employer, if by doing so he subjects himself to any extraordinary hazard or peril not incident to the usual mode of conducting the business or employment. If he has notice of any defect in the appliances or instrumentalities used by him, from which injury may be reasonably apprehended, he should, generally speaking, quit the service for his own protection. Notice of the defect merely does not,.however, impute to him negligence. He must have' notice of the danger which then becomes a circumstance from which negligence may be inferred, if he continues silently and without objection in the prosecution of his employment. — Wood on Master & Servant, §§ 336, 352, 359.
It is everywhere admitted, that, if the danger encountered by the employee, through his continuance in the service, is so obvious and inevitable, as that no person of ordinary prudence — that no one but a reckless man — would venture upon it, under the circumstances of the particular case, then the continuance of the peril is at his own risk, and the employer is acquitted of responsibility, upon the ground of the employee’s contributory negligence. — Patterson v. Pittsburg, etc. Railroad Co. (76 Penn. St. 389), s. c. 18 Amer. Rep. 412 ; Snow v. Housatonic Railroad Co., 8 Allen (Mass.) 441.
Where, however, the employee or servant, electing not to abandon his employment, gives notice to the employer of such defect in the appliances or instrumentalities used by him, and the employer promises to remedy the defect, the relationship of the contracting parties at once undergoes a
The duty of the defendant to furnish and maintain suitable material and appliances fur the prosecution of its business is one of that class of duties which the law exacts of it
Stephens being the general superintendent of the defendant’s business, charged with the duty of supplying fuse for blasting, and Falls having authority also to make such purchases, when needed, notice of the defect given to either of these agents was notice to the company itself. The court so held in all its rulings. „
We have examined the other rulings of the court as shown in the general charge, and in the giving and refusing of the charges requested, and find no error in them.
The rulings on the evidence seem to be equally free from error. We note only such as appear to be least free from doubt.
The question propounded to the witnesses, Gray and Johnson, as to whether the holes were “ properly charged ” before ignition of the fuse, was free from objection. It called rather for the statement of a collective fact than for a mere opinion. The witness had already stated the customary mode of- charging such holes, and the facts and conditions which constituted the preparation prior to the explosion of the dynamite, and the answer called for was a mere affirmation or denial of these facts or conditions as existing in this particular case.
The several questions, however, were objectionable and ]3roperly excluded, which were propounded by the defendant to various witnesses, asking “within what time it would be reasonably safe ” to return to a hole charged with dynamite cartridges, after ignition and failure to explode ? what
The other exceptions based on the admission and exclusion of evidence are not well taken.
Reversed and remanded.