Tutwiler Coal, Coke & Iron Co. v. Enslen, 129 Ala. 336

Tutwiler Coal, Coke & Iron Co. v. Enslen

129 Ala. 336 | Ala. | 1900

HARALSON, J.

1. The court gave the general charge in favor of defendant on all the counts in the complaint except the first, which count, as the appellant states in brief, is on the first subdivision of the employer’s liability act, providing for the liability of master or employer to servant or employe for injuries, “When the injury is caused by reason of any defect in the condition of the ways, works, machinery or plant connected with or used in the business of the master or employer.” — Code, § 1749, subdiv. 1.

There was a demurrer interposed to this count, upon several grounds; but there was no judgment upon the demurrer, and the sufficiency of the count is not be*346fore use.—Ala. Nat. Bank v. Hunt, 125 Ala. 512. But as to the sufficiency of the count, see Ga. Pac. R. Co. v. Propst, 85 Ala. 203; A. G. S. R. R. Co. v. Davis, 119 Ala. 572; Armstrong v. Montgomery St. R’y. Co., 123 Ala. 233.

2. The 1st and 2d refused charges are wanting in clearness, — incorrect, in fact, in stating that under certain conditions, Delius Jones, the deceased, could not recover. The defect is slight, and it may be inferred, that the meaning of the party drawing the charge was that the plaintiff, under the conditions hypothesized, could not recover. The court had no right to change the language of the charges, and, being faulty, we are not disposed to put the court in error for refusing them. Furthermore, we apprehend the charges may have been refused for the reason, that they ignore the fact plaintiff’s intestate was under fourteen years of age. Whether he could be guilty of contributory negligence or not was a question of fact to be determined by the jury, dependent upon the other fact, whether it had been shown that deceased had capacity to be guilty of contributory negligence. Between seven and fourteen, a child is prima, facie incapable of exercising judgment and discretion, but evidence may be received to show capacity.—Pratt Coal & Iron Co. v. Brawley, 83 Ala. 371; Lovell v. DeBardeleben C. & I. Co., 90 Ala 15; Jefferson v. B. R’y & E. Co., 116 Ala. 299.

It may be true, that contributory negligence may, under some conditions, be imputed to an infant under fourteen years of age, as a matter of law, as where the evidence of his care and prudence and his capacity to exercise judgment and discretion is not in conflict, and different inferences cannot be drawn therefrom. The fact, however, that the infant was shown to be “bright, smart and industrious,” without more, is not sufficient to overcome the presumption that want of discretion which his age prima'facie implies; for, an .infant may be all this and yet be so -wanting in judgment and discretion as to make Mm rash and imprudent.—Ala. Midland R’y Co. v. Marcus, 115 Ala. 395.

3. The 3d, 9th and 10th refused charges are not insisted on in argument. The statement'in brief, that a charge “asserts a correct proposition and should have *347been given,” or tliat a charge “should have been given,” contains no reason or argument for its giving, and justifies the court in refusing to consider it.—Olmstead v. Thompson, 91 Ala. 127; Williams v. Spraggins, 102 Ala. 424, 431.

As a sufficient justification for the refusal of the 5th charge,- — applicable also to the 3d and 5th, — we may appropriately adopt the language of the appellee’s counsel, that it “ignores the fact of intestate’s tender age and childish instincts, and that he had been put to work, not only in a dangerous place, but in proximity to other danger, where the natural instincts of a child might call him to go, notwithstanding he might not have been required, by the strict necessity of his 'business, to go.—Ala. C. C. & I. Co. v. Pitts, 98 Ala. 285; 2 Bailey’s Per. Injuries, §§ 2714, 2766.”

4. There was testimony tending to show that the intestate was injured while in the discharge of his duties, and that the service he rendered, with the knowledge of defendant,' — the benefits of which it is to be presumed defendant accepted, — demanded his presence at the place where the injury was received. The testimony of defendant was in conflict, however, with the above. The disputed fact, therefore, became one for the consideration of the jury. It follows, .that charges 4 and 12 were properly refused. Charges 6 and 11 attempt to raise a question not within the issue. There is no count in the complaint, to which the charges are pertinent. Charge 10 is not insisted on in argument.

Charge 7 was an improper instruction. Its last clause, — that the jury should calculate what was earned and saved (by deceased) after he was 21 years of age, —is ’confusing and abstract, since there could have been no earnings by deceased after he was 21, -when he was killed before reaching that age.

The language of refused charge 8 is faulty in the use of the expression, “When the heirs and distributees would have likely have received.” The recovery is for the money value of the intestate’s estate, having regard to his age, probable duration of life, habits of industry, means, business, earnings, health, skill,- reasonable future expectations, etc., and not what the intestate’s heirs and distributees would likely-have received from his estate. They could only receive what, is left after *348paying costs and expenses of administration, and the suit can be maintained only by the personal representative of the deceased; the l’ecovery being for the benefit of his distributees.—Code, § 1751; James v. R. & D. R. R. Co., 92 Ala. 231; L. & N. R. R. Co. v. Orr, 91 Ala. 548.

5. The father is entitled to the earnings of his minor child, unless the child has been emancipated by him. There is no evidence to show whether the intestate had a father or not, or that he had ever been emancipated. The presumption, in the absence of proof, is, that an infant has a father; and, because it is in the natural and usual order of things, it is also to be presumed that the father supports him, and in turn receives and appropriates his earnings. The recovery under the statute is for the probable value of intestate’s estate, had he lived out his expectancey. If the father appropriates his minor child’s earnings, as he has the right to do, it would follow, that the earnings of the child during minority could not be considered in estimating the probable value of his estate.—A. & C. Co. v. Pitts, 98 Ala. 285. His earning capacity, however, during minority is competent evidence to show what his earnings would have been, had he lived to and 'beyond maturity. As pertinent to this inquiry, it has been held: “That the jury may have proper data from which a pecuniary compensation may be fixed, it is proper to admit evidence of age, probable duration of life, habits of industry, means, business, earnings, and perhaps other facts.”—L. & N. R. R. Co. v. Orr, 91 Ala. 548; James v. R. & D. R. R. Co., 92 Ala. 231; McAdory v. L. & N. R. R. Co., 94 Ala. 272. Moreover, the evidence shows that the intestate left distributees of his estate. As has been said, it was not shown that he had no father, and it is shown that his mother was alive, each of whom on his death was entitled* to equal distribution in his estate. It is only when the intestate has no distributees, that nominal damages only could be given. James v. R. & D. R. R. Co., 92 Ala. 231. Charge 13 was properly refused, and the same thing may be said of charge 14. The mother of deceased testified that he sometimes drew his money, and sometimes she drew it for him, and that when he drew it, he always 'brought and turned it over to her.

*3496. The evidence tends to show that deceased was killed at a point called the First Eight Cross entry; that for the defendant, that his place of business was about 50 feet towards the mouth of the mine above that point, — at the safety hole, — -and that for plaintiff, that his duties as cliainer or coupler of cars, were at the cross entry, and that the cars came and went about every ten minutes.

'The question ivas propounded on the cross to John Capps, defendant’s witness: “If 8 or 10 loaded cars were coupled to 'the end of the chain, state whether or not they would extend below the right cross entry?” Objection was made, that the question called for irrelevant, immaterial and incompetent testimony, and that there ivas “no evidence tending to show that deceased was hurt when inspecting cars to see that they were coupled.” In view of tendencies of plaintiff’s evidence, that the duties- of deceased called him to the point where he was killed, we discover no reason why 'defendant’s witness on his cross-examination, might not be asked the question, the direct object of which was to show a necessity or propriety for the presence of deceased at that point for the discharge of his duties, and to sustain plaintiff’s evidence, in contradiction of defendant’s, that his place of duty was at that point.

The judgment of the lower court is affirmed.