78 So. 756 | Ala. | 1918
In the case of Walker v. Birmingham Coal Iron Co.,
It is true that in the opinion upon rehearing in the Walker Case, supra, we said it "may be" that the act of 1911 would change the rule, and that the mine owner would meet the requirement when he furnished the requisite amount of air. This expression, however, was in no sense a construction of the act of 1911, which did not apply to the case under consideration, and it was not then realized that the act, instead of prescribing the amount of air, merely fixes a minimum amount. The charge, copied in assignment of error No. 1, given for the defendant, did not conform to the statutory requirement, as it called for a finding for the defendant if it provided ample means of ventilation, but omitted the necessity of maintaining the means or appliances to the extent that the gas would be diluted or swept out so as to render the same harmless. Nor can the giving of said charge be justified upon the suggested idea that the complaint is so worded as to entitle the defendant to a verdict if the proof failed to show a noncompliance with either conjunctive averment under the case of Birmingham Ry. Co. v. Baylor,
The trial court erred in giving the charge for the defendant, copied in the second assignment of error. If not otherwise bad, it charges the plaintiff's intestate with the act of any one in leaving the curtain up at the ninth entry. The plea charges that the intestate left it up, but the charge does not confine it to the plaintiff or to one for whose act the defendant may not be responsible. *384 From aught that appears from the charge, the panel may have been left up by some servant or agent of the defendant other than the intestate, charged with the duty of maintaining and operating the ventilating system, and keeping the panel down may have been essential to a proper ventilation. Of course, if the intestate left it up, and that was the proximate cause of the injury, the defendant would be entitled to a verdict under its special plea invoking this defense. Or if the fire was caused proximately by the panel being left up by one for whose act the defendant was not answerable to the intestate, the defendant would not be liable, as the injury did not thus result from a breach of the statute, but by some intervening act of the intestate, or other person for whose act the defendant was not liable; but the charge does not confine the raising or leaving the panel up to one for whose conduct the defendant was not responsible. Charges set out in assignments of error 3, 4, 6, and 9, if not otherwise faulty, possess the same vice as the one set up in assignment numbered 2. The men, or some of them, referred to in the charges may have been charged with the duty of looking after the ventilation of the mine. These charges are not so worded as to be governed by the defendant's plea 8.
The charge copied in the fifth assignment of error fully hypothesized the material averments of defendant's plea 6, to which no demurrer seems to have been interposed, and whether said plea would have withstood an appropriate demurrer we need not decide as it is sufficient to say that the giving of this charge was not error under said plea 6.
The charges copied in assignments of error 7 and 8 seem to conform to defendant's pleas of contributory negligence.
The charge copied in the tenth assignment of error could probably have been refused without error, as it is not predicated upon any issue presented by the pleading, as there is no count for a failure of the fire boss to examine the working place, though the giving of same was not reversible error.
The judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
McCLELLAN, SAYRE, and GARDNER, JJ., concur.