49 So. 395 | Ala. | 1909
The complaint contained several counts, but all were eliminated, by demurrers sustained, and charges given, except the third count as amended, which is in the following language: “Plaintiff claims of the defendant $20,000 damages, in this, that on, to-wit, the 3d day of February, 1904, defendant was operating a coal mine called ‘Bradford mine,’ in Jefferson county, Ala., that plaintiff was working in said mine as an employe of said defendant, and while at work therein was injured and damaged as is more particularly set out in the first count of this complaint. And plaintiff avers that it was the duty of defendant while operating said mine to provide a stretcher properly constructed, woolen and waterproof blankets in good condition for use in carrying away any person that might be injured while at work in said mine. And plaintiff avers: That defendant negligently failed to provide such stretcher and blankets, and because thereof, when plaintiff was injured as aforesaid, which was in the nighttime, and the weather was very cold on account of the failure of the defendant to provide such stretcher and blankets, he was compelled to walk a long way on foot, through the mud, and he was compelled to wade through cold water, and he had to be carried a long distance over rough roads in a wagon, from which he suffered greatly on
The cause has been before this court on a former appeal. — Wolf v. Smith, 149 Ala. 457, 42 South. 824, 9 L. R. A. (N. S.) 388. Upon that appeal we held this third count good, against a demurrer which proceeded upon the notion that the statute upon which it is based (section 2917, Code 1896) is violative of the Constitution, “in that it arbitrarily invades the rights of the defendant and depi’ives him of his property rights without due process of law, and in its enactment that the legislature was not within a legitimate exercise of the police power of the state.” We are now asked to overturn that decision.
It is deemed unnecessary to restate the grounds upon which the statute was sustained on the former appeal, or to reproduce the arguments. It suffices to say that a careful consideration of briefs of counsel and of the authorities has failed to convince us that our decision, on
Thus it will be seen that it is assumed, in argument, that the dangers attendant upon the working of ore mines, quarries, and railroads are the same as or similar to those incident to coal mining. If we must determine the question at issue upon the hypothesis that other businesses are attended with similar dangers then we might answer the insistence of the appellant by saying that, if the court has judicial' knowledge in respect to the question, it is that the dangers which menace the employe in the ore mine, in the quarry, or on the railroad, are not the same as those which the employe in the coal mine encounters. We think it may safely.be said to be a matter of general information that the operation of coal mines is more hazardous probably than
It must be conceded by all that the Constitution does not- forbid a reasonable and proper classification of the objects of legislation. “Th°e question is: What is reasonable and proper in the premises? No' definite or absolute rule can be laid down by which the question can be determined in all cases, but the question must be determined in each case as it arises and for that case alone.” — 1 Lewis’ Sutherland, Stat. Const. § 203. The proper test seems to be that “the reasonableness of a classification is that it must be based upon some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection.”— State v. Jacksonville Terminal Co., 41 Fla. 363, 374, 27 South. 221, 224. And as was said by the Supreme Court of the United States: “The state may distinguish, select, and qualify objects of legislation, and necessarily the power must have a wide range of discretion. * * * * Classification for such purposes is not invalid because not depending on scientific or marked differences in things or persons or in their relations. It suffices if it is practical, and is not reviewable unless palpably
Again, in Pennsylvania, an act which made a distinction between anthracite and bituminous coal mines, in respect to inspection, was held not to be classs legislation; all anthracite mines being included in the law.— Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237, 29 L. R. A. 808, 50 Am. St. Rep. 801; Commonwealth v. Jones, 4 Pa. Super. Ct. 363; Read v. Clearfield County, 12 Pa, Super. Ct. 419, 427. In the last case cited an act relating to bituminous mines alone, and providing for the “lives, health, safety, and welfare, of persons employed therein,” was upheld, as against an attack similar to the one we are dealing with. The court there said: “We think it is clear under the authorities that the Legislature has the right to classify the coal mining businéss of the state in the way it has, and to legislate for each class separately. The act under consideration is an exercise of the police power. So long as the right
So likewise, our own court has said that-: “The general- power of the legislature to regulate occupations and businesses of all kinds, keeping within the principle that all members of-a particular class proposed to be regulated- must be equally amenable to the regulations made, has been time and again declared.” — Youngblood v. Birmingham, etc., Co., 95 Ala. 521, 526, 12 South. 579, 581, 20 L. R. A. 58, 36 Am. St. Rep. 245, and authorities there cited-; 1 Lewis’ Sutherland, Stat. Const. § 203. Here it is certainly true that the statute operates on all coal mine operators, and it seems clear to us- that they form, by themselves, a proper and legitimate class, with reference to the- purposes of the act, and, upon reasonable ground, that they are distinguishable from ore mine operators. - Upon the foregoing considerations, authorities cited, and reasons which underlie the authorities, we conclude that the statute in question is a constitutional enactment; and must therefore be upheld.
This brings us to consideration of the questions which are presented by the bill of exceptions. The trial, it appears, began with counts 1 and 5, and count 3 as amended in the complaint; and the pleas upon which issue was joined are addressed to these counts. The court, at the conclusion of the evidence, charged out all the counts except .count 3 as last amended. According to the proper interpretation of the record, the only pleas addressed to count 3 as amended are pleas 1 (the general issue), 4, 5, and 7, filed May 14, 1907. Neither of these pleas presents the defense of contributory negligence. Therefore the ground stated in appellant’s brief for the insistence that the general affirmative charge as requested by him should have been given does not exist, and such
On the former appeal we said, in respect to the purpose of the statute: • “Manifestly the statute imposes the duty of keeping the articles and emollients mentioned for the benefit of those persons in the employment of the owner or person operating the mine who may be injured at or in the mines while in the performance ■ of their duties as such- employes. *■ * * No penalty is attached for a failure to comply with the requirements of the statute; but it is a general and well-established rule that the wrongdoer is liable in damages to the party injured by a violation of a statutory duty.” We reaffirm the above, and further hold, in accordance with previous decisions' of this court, that, the duty being imposed by the statute, proof of a failure to comply with its requirements is sufficient proof'of negligence on the part of the person charged with such failure. — Kansas City, etc., Co. v. Flippo, 138 Ala. 487, 35 South. 457. But mere proof of failure to comply with the statute, or such proof supplemented by proof of the injury received at or in the mines, will entitle the plaintiff to recover no-more than nominal damages. Therefore, to warrant recovery for substantial, as contradistinguished from nominal, damages, there must be added, to such specified-evidence, proof that plaintiff’s pain and suffering, the result of his injuries, would probably have been alleviated, or that the harmful effects of his injuries would have been lessened, had the articles and emollients prescribed been kept on hand. Stated differently, the mere failure to comply with the statute, unaccompanied by augmentation of the plaintiff’s pain and suffering by reason of his hot being supplied with the arti
On these considerations, charge 4 would be a correct charge if the second alternative had been omitted; but that alternative imparts to it a misleading tendency, if it does not render it positively bad. The failure to furnish the blanket may not have caused plaintiff additional- injury; but, at the same time, if it had been furnished, it might have diminished his suffering and pain incident to the physical injury.
Charge 5 requested by the defendant, was properly re fused. The damages may have been the proximate result of the explosion of the dynamite, and at the same time plaintiff’s suffering might have been alleviated had the articles and emollients been at hand.
Charge number 1 “is couched in language which seeks to put the court in the attitude of casting some distrust, doubt, or suspicion” upon plaintiff’s evidence tending to show that defendant had not complied with the statute. This of itself justified the court in refusing it.— Miller’s Case, 107 Ala. 40, 60, 19 South. 37. Furthermore, it excludes the idea that nominal damages might be assessed. Plaintiff might have suffered from lack of the articles prescribed by the statute, and yet his damage in this respect could have been accounted by the jury too inconsiderable to warrant more than nominal damages.
The court committed no error in declining to allow the defendant to- prove by Dr. Love, who was the physi
The court committed no error in overruling the general objection to the question addressed to Dr. John Love, on cross-examination, “How much do they pay you a month apiece?” The question was not patently illegal, and the- court was under no duty to cast about for a ground for the objection.
The defendant made a motion for a new trial, and embraced therein, amongst other grounds, alleged errors committed by the court in the oral charge; but it appears that no exception was reserved by the defendant to the charge, nor to any part thereof. A motion for a new trial cannot be made to serve the purpose of an exception to a ruling or charge of the -court, nor can it cure the failure to reserve such exception. Tobias v. Triest, 103 Ala. 664, 15 South. 914; Stewart v. Guy, 138 Ala. 176, 34 South. 1007.
This leaves for consideration only one question: Was the verdict returned by the jury excessive in amount? From the testimony in the case it appears without conflict that plaintiff was severely and permanently injured, in the mines, by the explosion of a stick of dynamite which he held in his hand. He lost both hands and the sight of one of his eyes. If the defendant had been responsible for these injuries, and damages therefor could be recovered in this action, the sum of $2,500, as here assessed by the jury, might be considered moderate; but the evidence is without conflict to the effect that plaintiff was the author of his own misfortune
It follows that the judgment appealed from must be reversed, and the cause remanded.
Reversed and remanded.