255 F. 469 | 5th Cir. | 1918
This was an action, under the Alabama Employers’ Riability Statute (Code 1907, § 39101), by the plaintiff in error, as the administrator of Angus McNeil, deceased, to recover damages for the latter’s death, which was attributed to the alleged negligent failure of his employer, the defendant in error, to provide a reasonably safe place for the performance by the deceased of his duties as an employe engaged in operating a machine for cutting or excavating coal in a mine of the defendant in error, in that the latter negligently suffered its- plant to be defective. The machine was operated by electricity transmitted from a trolley wire above it; a pole with a nonconducting handle being used for connecting or disconnecting the machine with the trolley wire. At the time the deceased was killed he was on top of the machine mentioned, which had been moved through a cross-cut leading from a heading in the mine to an air course which ran parallel with that heading. When the machine was near to a switch at the connection of the track through the cross-cut with the track in the air course, the deceased was killed as a result of his head coming in contact with the trolley wire above it, which carried 250 volts, direct current, of electricity. A reversal of the judgment in favor of the defendant in error is sought because of rulings made by the court in admitting and excluding evidence, and because of instructions given by the court to the jury.
No exception was reserved to some of the rulings on evidence which are assigned as errors. We discover no reversible error in any such ruling which is presented for review.
An exception was reserved to the following statement made by the court in its oral charge to the jury:
*471 “That statutory duty had no application to this case, because the undisputed evidence shows that the voltage was less than 300, and this place where the accident occurred was neither in a slope, nor in a manway, nor in a shaft, so that there was no statutory duty resting on the defendant to shield the wire that plaintiff’s intestate came in contact with, and that caused his, death.”
The statute referred to is one which prescribes the following regulations concerning the insulation, maintenance, and operation of electrical apparatus in coal mines in the state of Alabama :
“Conductors in shafts and slopes used as traveling ways and in escape ways shall be protected. * * *
“All trolley wires carrying a voltage of between 300 volts and (K)0 volls direct current, or MO volts and 480 volts alternating current, must be properly shielded, except where the same are at least 6% feet above top of rail.” General Acts of Alabama 1911, pages 534, 535, § 100, rules 11 and 13.
But under the common law, and regardless of that statute, it was the duty of the defendant in error to exercise reasonable care to see that the place where the deceased was when he was killed, engaged as an employé doing work assigned to him, was reasonably safe. On the question of the employer’s discharge of this duty the evidence adduced was conflicting. There was evidence for and against either of the conclusions that it was negligent to leave the trolley wire unshielded at the place in question, or in permitting it to be as low as it was. On the other hand, there was evidence for and against the conclusions that the deceased’s death was proximately contributed to by his negligently being on the machine, or by his negligently failing to avoid contact with the wire above him, the presence and location of which were previously known to him. The questions raised by this conflicting evidence were submitted to the jury under instructions which left it to them to determine whether the employer did or did not perform its duty of seeing to the safety of its plant at the place where the deceased was killed, and whether the latter was or was not guilty of contributory negligence. Exceptions were reserved to portions of the charge given by the court in submitting those questions to the jury. Mention will be made of such of those rulings as seem to us to justify any comment.
“The law of Alabama Is that, even, though the employer be at fault in a way that helps to cause the injury, yet if the employé who is injured or killed is also at fault — his conduct is negligent in a way that also helps to bring about the injury — then the injured employé, or his representative, if killed, has no right of action against his employer.”
This instruction is criticized because the hypothesized negligence of the deceased which would stand in the way of the plaintiff’s recovery was described as helping to bring about the injury, instead of being described as proximately contributing to the injury. It cannot be supposed that a different meaning would have been conveyed to the jury, if the orthodox expression commonly used to describe the negligence of an injured person having the effect of preventing a recovery had been employed. If the court had said that what was relied on as contributory negligence must have proximately contributed to the injury,
“If the jury believe from the evidence that tho plaintiff’s Intestate knew of tho location of the wire which caused his death, and of the danger therefrom, and if the jury believe from tho evidence that the death of the plaintiff’s intestate was proximately due to his inattention, Indifference, absentmindedness, or forgetfulness of the presence and danger of said wire, then their 'verdict must be for defendant.”
This charge is criticized on the ground that the deceased’s forgetfulness of the presence and danger of the wire was not negligence, unless a reasonably prudent man, under the attending circumstances, would have been likely to be mindful of the peril from the wire. The action of the court in giving the charge in question is supported by often-repeated decisions of tho Supreme, Court of Alabama dealing with similar instructions given with reference to states of fact not distinguishable in principle from the one disclosed by a phase of the evidence in the instant case. Louisville & Nashville R. Co. v. Hall, 87 Ala. 708, 6 South. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84; Wood v. Richmond & Danville R. Co., 100 Ala. 660, 13 South. 552; Sloss I. & S. Co. v. Knowles, 129 Ala. 410, 30 South. 584; Alteriac v. West Pratt Coal Co., 161 Ala. 435, 49 South. 867; Kilby Co. v. Jackson, 175 Ala. 125, 57 South. 691; Dorough v. Alabama Power Co. (Ala.) 76 South. 963. The decisions referred to are to be regarded as evidencing the existence of an established rule of conduct in that state. It is the law of that state which this court is called on to administer in the instant case. It may be assumed or conceded that the criticism of the correctness of the instruction would merit consideration if the question were presented to us without previously having been passed on by the Supreme Court of Alabama in decisions repeated and reiterated for many years. In view of the settled course of decisions of the highest court of that state, it does not seem to us that the question presented is an open one. One’s
The issues of fact in the case were submitted to the jury under appropriate instructions. A careful examination of the record has not led to the discovery of any error calling for a reversal of the judgment. Affirmed.