99 Ark. 302 | Ark. | 1911
Lead Opinion
(after stating the facts). The action was brought under the general law, as shown by the amended complaint, and not under the miners’ act, as contended by appellant, and the administratrix of the deceased was the proper party to sue for damages on account of his wrongful death, alleged to have been caused by negligence of appellant, and could in the same suit recover both for the benefit of the widow and next of kin, and of the estate. Sections 6285 and 6290, Kirby’s Digest; Davis v. Ry., 53 Ark. 117. Any uncertainty or defective allegations of the complaint should have been reached by a motion to make more -specific, and the demurrer to the amended complaint was properly overruled.
It is next contended that the court erred in overruling the motion for a continuance. The action was brought in October,, 1908, and at the first hearing resulted in a mistrial, and after the parties announced ready for trial on April 12, 1910, appellee filed the amended complaint. Appellant set up in its motion that it was taken by surprise by the filing of said complaint, which it alleged set up new acts of negligence and an entirely new cause of action, but the cause had been tried once and the complaint was amended to conform rather to the testimony that was developed at that trial, and omitted all charges of negligence, except that of the fireman, and more specifically set out his negligence, giving his name, and all of the witnesses who knew anything at all about the occurrence and transaction were present at the trial and testified, and no injury could have resulted to appellant, because of the refusal to grant a continuance. The granting of a continuance is within the sound disci etion of the court, and no abuse of that discretion is shown here, and no error was committed in overruling the motion. St. Louis, I. M. & S. Ry. Co. v. Webster, ante p. 256; St. Louis S. W. Ry. Co. v. Jackson, 93 Ark. 119.
The court’s. action in admitting the testimony of Anderson and Norton relating the conversation between Edwards, the fireman, and deceased before he was lowered into the mine, and that of Linn and others as to its meaning, is also assigned as error. It is first objected that if the conversation occurred as detailed by them it did not tend to support the allegation o.f the complaint that “he asked Ab. Edwards, who was in charge as above set forth, for what length of time the fan had been in operation,” no reference being made to the fan at all; and next that error was committed in permitting Linn and others, who had been long at work in said mine, to state that they would have understood from the questions and answers that deceased was asking of the fireman about the length of time the fan had been running and receiving information about the operation of the fan. Edwards denied having the conversation with Hodge as testified to by Norton and Anderson, and stated that Hodge said, “How long before you are ready?’ And I said, T am ready now except I have just turned the steam up to the fan.’ He said, T will change clothes and eat a bite, and by that time I guess everything will be all right.’ He went in the mine between twenty and twenty-five minutes afterwards — about twenty minutes, I reckon.” According to his own statement, he understood that Hodge was asking about the time the fan had been running, regardless of the form of the question. If the questions' and answers given by the parties had any special significance or meaning among the miners by whom they were in use, it was competent for those familiar with such usage to explain it to the jury, otherwise not; and if not, the jury would have known it was used in its common and ordinary acceptation and understood its meaning. In either event, no prejudice could have resulted to appellant because of its introduction and explanation, the court having instructed the jury to find for appellant if “Edwards told Hodge that he had just turned the steam up to the fan,” and also if the questions and answers related by Norton and Anderson “were not understood 'by Ab. Edwards to be an inquiry as to how long the fan had been running the plaintiff cannot recover.”
It is strongly urged that the court should have given a peremptory instruction directing a verdict in favor of appellant. The testimony shows that the deceased, Joseph Hodge, was an experienced miner, long acquainted with the conditions existing at the mine in which he was injured, having been employed there for more than six years; that he knew of the dangers caused by inflammable gas produced by the mine; that he knew of the arrangement made for clearing out the gas by the operation of the fan and the time it took to clear same out-and make it safe for persons going into the mine. He was acquainted with the use of miners’ safety lamps, and knew that some were kept on hand in the engine room for use in the mine, that an explosion was not likely to occur, even in the air course where it was dangerous with an open lamp when the safety lamp was used, but he also knew that when the fan had been in operation from an hour and thirty minutes to two hours it was safe to go into any part of the mine without such safety lamp. He came to the mine on this Sunday, which had been in charge of Hudson that day, about 7 o’clock, the time he had usually gone down on Sunday evenings. He asked the fireman, whose duty it was to give him information, as to the time the steam had been up and the fan had been in operation, that he might decide whether it was safe to enter the mine to start the pumping engine and clear the mine of water, as it was his duty to do. About the question asked the fireman by him, and the answers given, and the meaning intended to be conveyed, and what he understood therefrom, there is decided conflict. Hodge asked the fireman how long he had been on, or how long he had' been going and the fireman told him an hour and a half to an hour and forty-five minutes, thinking, it is insisted, he was asking as to the time the fireman bad been on duty, and had the fire going under the boilers, and not meaning to inform him that the fan had been in operation that time. Hodge said he supposed it would be all right in fifteen or twenty minutes, which would have made two hours, if he understood from Edwards that the fan had been in operation the length of time he mentioned. In any event, within about that time he directed Edwards, who thought he was going too early but said nothing about it to him, to let him down into the mine, and within a few minutes the explosion occurred, and the signal was given, and .he was hoisted out badly burned, from the effects of which he died two days later .after much suffering.
It took about two hours after the fire was started to generate enough steam to operate the pumping and fan engines, and the .appellant contends that Hodge might have gone safely to the pump and started it within a short time after the fan had started, or before it had started in fact, if he had gone no further than to the pump, and that he was only asking Edwards as to the time he had been on, that he might know whether there was sufficient steam to operate the pumping engine, and that the jury should have ¡believed the testimony of Edwards, denying that any such conversation occurred as testified to by Norton and Anderson, and stating that he replied to Hodge’s question, “I am ready now except I have just turned steam up to the fan.” It was Hodge’s duty, not onty to oper.ate-the pump but to repair all the machinery and pipes attached thereto and necessary to be kept in repair in the successful operation of the pump and removing the water from the mine, and at the time of the explosion he was in the air course where it was dangerous to be with an open lamp within less than two hours after the fan had been in operation. There was a leak in the pipe in the air course which he had evidently gone in to repair, as shown by the wooden plug and the hammer found where the explosion occurred. It is also true that some of the witnesses testified that he said after he came out, in explanation of how the injury occurred, that he went down a little too soon,but this statement was only made because the explosion conclusively showed that he had gone in before the mine was cleared of gas, and was not an admission that he was negligent in doing so.
The court in specific instructions told the jury, if Edwards told Hodge that he had just turned the steam up to the fan, or if Hodge’s questions were not understood by Edwards to be an inquiry as to how long the fan had been running, plaintiff could not recover, and the jury evidently believed, as Hodge’s actions in going down into the mine indicated, that he was inquiring of Ah. Edwards as to the time the fan had been in operation and understood from his answers to the inquiry that it had been in operation the length' of time mentioned. In coming to this conclusion they could rely upon their common knowledge and experience of human affairs, that all men take thought for the preservation of their lives — “yea, that a man hath will he give for his life” — and would not have gone into the danger and to his death had he understood the answer to his inquiry otherwise.
There was testimony sufficient to sustain the verdict, and the court did not err in refusing the requested peremptory instructions. He had the right to rely upon the information which he understood had been given him by the fireman, whose duty it was to give him the information, and of whom it was his duty to inquire as to the length of time the fan had been in operation, that he might decide whether or not it was safe to go into the mine, and, having received such information and acted upon it and been injured because of the very danger which he would not have gone into but for the misleading information, it was the proximate cause of the injury, and appellant is responsible therefor. Pulaski Gas Light Co. v. McClintock, 97 Ark. 576.
There were many objections to the instructions given by the court on behalf of the appellee and also to the failure and refusal of the court to give instructions requested by appellant, but, upon the whole, the instructions given to the jury by the court, while one or two for the plaintiff were long and rather involved, fairly submitted the question at issue to the jury, and we do not find any error committed in the giving or refusing of said instructions.
Finding no error in the record, the judgment is affirmed.
Rehearing
ON REHEARING.
It is urged that the court erred in failing to consider and reverse this cause on account of the admission of certain incompetent testimony of witness Fitzgerald. He was being examined relative to the pain and anguish suffered by deceased, and, after describing it and stating that he was conscious all the time and talked about his family, testified, over objection of appellant, as follows:
“Q. What did he say about his family? Tell, if you can, what he said about his family? A. He said like this, that he would not get up again, and he would leave his little children in bad shape. Q. Did he say it like you are saying it? A. Yes, sir; he talked reasonable. Q. Knew and realized what he was doing? A. Yes, sir. Fie said like this — he said that it would be impossible for him to get up again, and he would leave his little children in bad shape. That is what he told me and Doc.”
This testimony was not competent except as it might tend to show the injured person was conscious, and not necessary on that account, that fact not really being disputed. Its admission was not harmful, however, since the widow had already testified without objection to the condition of the family, as follows:
“Q. Who is living with you at the present time? A. Just my little children. Q. Are you on a farm? A. Yes, sir; but I am not making any crop. I am working by the day and taking in washing.”
The incompetent testimony was not pressed upon the attention of the jury in argument, and did not result to the injury of appellant in the award of damages, for the jury could well have found under the testimony the whole amount of the verdict on either count of the complaint without their verdict being excessive.
