109 Tenn. 346 | Tenn. | 1902
delivered the opinion of the Court.
Tbe plaintiffs below, as next of kin of Pbaraob C.. Wallace, deceased, recovered a verdict and judgment against T. H. Heald, receiver of tbe Black Diamond' Coal Company, for tbe sum of $5,000, as damages for tbe alleged negligent killing of tbe said decedent. Tbe receiver appealed, and bas assigned errors.
The first assignment is that tbe entire suit has-now abated, and. is not subject to revivor. This contention is based on tbe following facts: Tbe suit was originally brought by James Wallace and bis nine-brothers, alleging that they were tbe children and next of kin of tbe said Pbaraob C. Wallace, who was killed while in tbe employment of said receiver. It appears that four of tbe plaintiffs have died since-this suit was instituted. James Wallace died prior to the trial in tbe circuit court, while bis three brothers, John, Charles, and William Wallace, have died since tbe judgment in the circuit court,, and pending tbe appeal; their deaths having been suggested and admitted in this court. A motion is-now pending in this court to revive tbe suit in the-name of tbe several administrators of tbe three plaintiff’s dying since tbe judgment below. .The effect of tbe death of James Wallace, who died before the-
But as to the three plaintiffs, John, Charles, and William Wallace, who died after the judgment in the circuit court was rendered, and pending the appeal, the rule is otherwise, and the suit may be revived in the name of their respective administrators. The reason is that by the judgment below the tort has become converted into a debt, and the appeal has not vacated, but only suspended, the judgment. This rule has been recognized by this court in libel cases, although -expressly excluded from the statute authorizing re-vivor of action in this State. Shannon’s Code, sec. 4569. We have held that where the tort has become merged in the judgment the statute is inapplicable. Akers v. Akers, 16 Lea, 7 (57 Am. Rep., 207); Kimbrough v. Mitchell, 1 Head, 540; Baker v. Dansbee, 7 Heisk., 231.
It is insisted, however, that the effect of the death -of James Wallace before the trial below was to abate the proportional right of action vested in him, and, as a legal consequence, to abate the entire right of action in favor of all the plaintiffs. This contention seems to be based by learned counsel largely on the case of Railroad Co. v. Bean, 94 Tenn., 388 (29 S.
It will be observed that in the Bean case we expressly stated that “the exclusive statutory beneficiary was that person or class of persons who were entitled to the recovery at the death of the deceased, when the cause of action accrued.” If James Wallace had been the sole next of kin, the entire suit:
It is next insisted, on behalf of the next of kin, that the trial court improperly excluded certain alleged statements of the mine boss and timberman, and that this court on the present appeal can review this action, and, if the excluded evidence is found competent, it may now be considered by this court in determining whether the demurrer to the evidence was properly overruled. It will be perceived this question is made in this court by the successful party on the appeal of the unsuccessful party, and the position assumed is that, if this court should be of opinion the demurrer to the evidence was improperly overruled on the admitted evidence, the excluded evidence was competent, and, considering it, the demurrer should still be overruled. It is well settled that a demurrer to the evidence waives objections interposed to the admissi
Tbe defendant then demurred to tbe admitted evidence, tbe demurrer was overruled, and damages af-terwards assessed by a jury. Defendant company then appealed to this court. It is now insisted on behalf of defendants in error, tbe next of kin to Wallace, that, in order to test tbe sufficiency of the demurrer to tbe evidence, this court should now consider tbe evidence which they claim was improperly .excluded by tbe circuit court.
In Washburn v. Shelby Co., 104 Ind., 321 (3 N. E., 757, 54 Am. Rep., 332), Judge Elliott, deliyering the opinion of tbe court, said: “We do not think that tbe fact that tbe appellee demurred to tbe appellant’s evidence precludes him from availing himself of a ruling excluding competent evidence. To bold that a party demurring to tbe evidence may render unavailing a ruling made against bis adversary, excluding competent testimony would work great injustice; for, by so bolding, we should lay down a rule that would enable a defendant to secure erroneous rulings on tbe admission of evidence, and then, by demurring- to tbe .evidence admitted, deprive tbe plaintiff of tbe benefit of tbe rulings excluding evidence, however erroneous
It is true that in an Indiana case the demurrer to the evidence had been sustained, and the cause was in the appellate court on the appeal of the plaintiff. Here the demurrer to the evidence was overruled, the plaintiff’s damages assessed, and the case appealed to this court by the defendant.
Two questions now arise: (1) Whether plaintiffs can assign errors on the appeal of the defendant; and (2) whether plaintiffs should not have preserved the excluded evidence by bill of exceptions?
Considering this last question first, we are of opinion that, following the general practice, a bill of exceptions, duly authenticated, should have been taken to the action of the trial judge in excluding the evidence. A demurrer to the evidence is a mere pleading, and only brings before the court the admitted
The testimony in a law case can not be considered unless precisely identified and authenticated by the court by bill of exceptions. In State v. Hawkins, 91 Tenn., 140 (18 S. W., 114) it was held, approving Garrett v. Rogers, 1 Heisk., 821, and Wynne v. Edwards, 7 Humph., 419, that, where the bill of exceptions is not duly authenticated by the signature of the trial judge, it can not be treated as a part of the record, even though it is recited in the minutes that the hill of exceptions was signed by the trial judge and made a part of the record.
The question then remains, whether, on the appeal of the defendant, the plaintiff, who has preserved the excluded testimony, can assign as error the ac* tion of the court. Unless such practice is allowable, we can see how great injustice might be done the plaintiff. Although he has a verdict in his favor, if this court should reverse the action of the lower court overruling the demurrer to the evidence, and sustain it, the result would be a dismissal of plaintiff’s suit, although material evidence in his favor had been improperly excluded by the trial court, which, if considered, would show a good cause of action.
We are of opinion the action of the trial court in excluding competent evidence may be reviewed by the appellate court on the appeal of the defendant, whose demurrer to the admitted evidence had been overruled or sustained, provided the excluded evidence is made part of the record by bill of exceptions. But the excluded evidence can not be considered in this cause, because it has not been preserved by bill of exceptions.
The second assignment is that the court erred in not sustáining the defendant’s demurrer to the evidence. This assignment, of course, necessitates a re-vieAv of the facts: The deceased, Pharaoh C. Wallace, was at the time of his death employed as a miner in a mine of the Black Diamond Coal Company, then being operated by T. H. Heald, receiver. The said Wallace was engaged at the time of the accident in driving the neck of a room in No: 2, north entry, and was killed by a large rock falling from the room of the entry. Deceased was an old and experienced miner, and had been working in this particular mine (Beech Drove mine) five or six years. He had been working in this particular room about one month, and was assisted by his son, John Wallace, one of the plaintiffs, who was then a hoy about fourteen years of age. This room had been necked about twenty-four
It fell from tbe cross-timber all tbe length of the room neck. It was about eleven or twelve feet from tbe cross-timber to tbe far end of tbe rock that fell.
It appears that, after Guess set up tbe cross-timber, be tested tbe top, and bad a talk with Wallace. Tbe
Noav, upon these facts, it is insisted that the proximate cause of the accident was the gross contributory negligence of the deceased, and that the circuit judge should have sustained the demurrer to the evidence and dismissed the suit. One of the printed rules of the company, posted in plain view at the mines, at the place where the miners get their coal checks every morning and evening, was as follows: “All employees must, at the commencement of their daily work, note carefully and examine the face, sides, roof, and all parts of their working place, and satisfy themselves that the same is safe in every respect. But if, upon such examination, any employee shall find said work
Charles James, a miner working in the same mine at the time of the accident, testifies, on cross-examination, that, “when a man was driving an entry or room neck, it was his duty, from time to time, to sound the top;” that the company had specific rules to the effect that every man was to sound his top; that the printed rules were posted up at the mines in plain view, where the men got their checks every morning and evening ; that rule five had been a rule of the company as long as he had been working for the company; that the rules were that “it was every man’s duty to examine from time to time his own working place, and see that it was in safe condition;” and that “when he was
Ed. Peaverly, a miner working in tbe same mine at tbe time of tbe accident, states that if a man was working in an entry or roadway or room neck, and found that bis place was in bad condition, be would send for-John Guess, tbe timberman, to repair it; that it was customary, or the rule for a man to first examine bis-top, and see whether it was in good condition, and, when be found it was not in good condition, be would send for Guess, who would come and set a cross-timber ; that it was tbe duty of all miners, when digging-in a room neck, to sound tbe top and see if it was in good condition, just tbe same as if in a room,, and that they generally did this always; that if a miner was in a room neck-or entry, and found bis-top was not in a safe condition, it was bis duty to notify tbe boss or timberman to come and set the-timbers, and “to stay from under it until tbe man does come and set tbe cross-timbers.”
William Slover, a miner of twelve years’ experience, - working in tbe same mine at the-time of tbe accident, states that, when a man was digging in a room neck or entry, it was-his duty certainly, to examine bis top from time-to time; that “it is any man’s duty to examine the-'
The foregoing testimony introduced by the plaintiffs demonstrates that, under the rules and custom of the company, it was the duty of the miner to make the necessary tests of his room neck, and, if he discovered it was not safe, he was charged with the duty of sending for the timberman, and especially was he enjoined and required to stand from under until the dangerous top was repaired. According to the testimony of plaintiffs’ witnesses, the duty of inspecting the changing top of a room neck is the same as in any other part of the room. We are constrained to believe from the record that deceased not only steadily undermined the rock and brought it down upon himself, but that he was conscious of the danger,
It is argued, however, on behalf of the plaintiffs beloAV, that it was the duty of the company to furnish its employees a safe place to work, and that the breach of this duty was the proximate cause of the accident, for which the defendant company is liable. We do not think this rule of the common law applicable in such a case. The principle invoked is usually applied to á permanent place, and not to such places as are constantly shifting and being transformed as the direct result of the employee’s labor. This distinction is aptly illustrated in the following cases: In Finalyson v. Mining Co., 14 C. C. A., 492 (67 Fed. 510), the plaintiff, a laborer engaged in mining ore, was injured by the falling of an exposed mass of substance, called “gouge,” which he was endeavoring to pick down under the direction of the foreman. ' It was held by the United States circuit court of appeals that the rule of a safe place to work had no application, and that a verdict was properly directed for the defendant. Sanborn, circuit judge, delivered ing the opinion of the court said: “It is the general rule that it is the duty of the master to exercise ordinary care to provide a reasonably safe place in which the servant may perform his service. Railway Co. v. Jarvi, 3 C. C. A., 483 (53 Fed., 65). But this rule can not be justly applied to cases in which the very work the servants are employed to do consists
It is true, in Iron Co. v. Pace, 101 Tenn., 484 (48 S. W., 232), we held the charge of the circuit judge was in accord with the general rule “that it is the duty of the master to keep the premises in the prosecution of his business in a reasonably safe condition, and, if he fails to do so, he is liable to the servant for all. the injuries resulting to him from such defects.” That was a case where a miner engaged in driving an entry was injured in consequence of an explosion caused by the negligence of the company in permitting explosive dust and gas to accumulate in the mine. The injuries were sustained as a result of a mine-dust explosion, and the recovery was sought for breach of the statute which required the company to keep its mine, with all its entries, airways, and workings, properly ventilated and free from all dangerous and explosive gases and substances, and to have said entries, airways, and workings examined and tested by one skilled in such business every morning before said employees entered said portion of the mine, and,
But it is claimed that defendant company is liable under section 8, ch. 170, of the Acts of 1881, making it the duty of the mine boss to keep a careful watch over the timbering, etc. That section is as follows: “That to better secure the ventilation of every coal mine and colliery, and provide for the health and safety of the men employed therein, otherwise and in every respect the owner or agent, as the case may be, in charge of every coal mine and colliery, shall employ a competent and practical inside overseer, to be called ‘mining boss/ who shall keep a careful watch over the ventilating apparatus, over the airways, the traveling ways, the pump, the sumps, and the timbering; to see, as the miners advance in their excavations, that
By section 19 of this act it is provided “that any miner having charge of a working place in any coal mine or colliery who shall neglect or refuse to keep the roof thereof properly propped and timbered, to prevent the falling of coal, slate, or rocks, every such, person or persons shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by imprisonment and fine at the discretion of the court trying the case.” An analysis of this statute will show the following tripartite obligation: (1) The mine owner is charged with the duty of employing a competent and practical inside overseer or mining-boss ; (2) the mining boss so employed is charged with the duty of maintaining a careful watch over the ventilation and the timbering, and to see, as the miners advance in their excavations, that all loose coal, slate, or rock overhead is carefully secured against falling, etc., and all things connected with or pertaining to the safety of the men at work in the mines; (3) the miner having charge of the working place in any mine is charged with the duty of keeping the roof thereof properly propped and timbered, to prevent the falling of coal, slate, or rock. It will thus be observed that reciprocal duties and obligations are imposed by the statute upon the company and its employees, which
It is said, however, that by custom of the company the miner was not charged with the duty of timbering-a room neck. It will be observed the statute makes-, no exception in requiring the miner to prop and timber his working place. It is a question, then, whether the miner could be relieved of this statutory duty by any rule or custom of the company.
In Mining Co. v. Floyd, Adm'r (Ohio), 38 N. E.,. 610 (25 L. R. A., 848), the plaintiff’s intestate, Olay, a coal miner, engaged in operating a machine that cut the coal, was killed by slate falling from the top-of room Avhile so engaged. It appeared that in each-room three sets of hands were employed in turn: First, the miners, of whom Olay was one, who operated the machine that cut the coal; next, the drillers, who drilled holes in the face of the coal to prepare it for blasting; and, lastly, the filler, who blasted down and loaded the coal, and who also, by a custom of the-mine, was required to post or prop the roof. Olay,. Avhile engaged in operating the coal-cutting machine,.' Avas killed by slate falling from the top of the room-on account of the negligent manner in which it had’ been pmdously propped by Dalton, the “filler.”
The Ohio statute provided that, “If any miner or-other person employed in any mine governed by the-
“The object of the statute is to encourage carefulness, — regard not only for the life of the miner, but for the lives of all who may be subject to like risks. It imposes an obligation to perform a duty to others. Anything, therefore, which tends to operate in opposition to that obligation, would violate the policy of this statute; and hence whatever right the custom at this mine, imposing upon Dalton the work of propping and posting the roof of the room, may have given Clay to call upon Dalton to do the manual work of posting, and delay his own work until that had been properly done, such custom ought not to have the effect to exonerate Clay from the duty enjoined by the statute, nor shift the risk undertaken by himself over upon the company. We think the trial judge erred in refusing to give the instruction requested, and in the charge as given on the subject.”
But without deciding this question, and conceding that under the rules of the company, as well as by custom, no obligation rested upon Wallace, the deceased miner, to prop and timber a room neck, as contradistinguished from a room, which it is admitted he was obliged to prop, was Wallace guilty of such contributory negligence as defeats this action? It is difficult to see wherein the mining boss, Card, was negligent. He had examined the top a day or two
It is said, however, that Card, the mining boss, did not return to inspect the room after Guess had timbered it; but, as is argued, this fact was fully known to Wallace, who did not send for Card or make any complaint.
There is no proof tending to show that Gness had improperly or negligently timbered this rock, hut the proof is that he carefully tested, after timbering, in order to ascertain whether it was safe.
It is further shown that, under the rules of the company, Guess was subject to Wallace’s orders, and that, upon the development of a dangerous condition in the rock, it was the duty of Wallace to send for' Guess and have the neck retimbered. So far as this record discloses, Guess had no notice from Wallace of the necessity for further timbering.
We are of opinion that, after a careful examination of this record, Wallace was guilty of gross contributory negligence, and that his negligence, more, over, was the proximate cause of this accident. The record clearly shows that Wallace worked for ten or fourteen hours under the overhanging rock after Guess had set up the cross-timbers; that he steadily undermined the support beneath the end of the rock, and thus caused its dislodgment and precipitation upon himself. The rules of the company imperatively required the miner, when he discovered the top to be
The judgment of the circuit court is therefore reversed, and the demurrer to the evidence sustained, and the suit dismissed.