Southern Coal & Coke Co. v. Swinney , 149 Ala. 405 ( 1907 )

DOWDELL, J. —

This is an action by the plaintiff to recover damages for personal injuries received in a coal mine while in the employment of the defendant in mining coal. The complaint contained’ four counts, to which demurrers were interposed and overruled. The defendant thereupon filed a number of pleas, consisting of the plea of not guilty and special pleas of contributory negligence. Demurrers were sustained to the eleArenth and twelfth special pleas, and, issue being-joined on the other pleas, a verdict was rendered in favor of the plaintiff. Upon the conclusion of the evidence the court, at the request of the defendant in writing, gave the general charge in favor of the defendant on all of the counts of the complaint except the third count. This latter count was predicated under the employer’s liability statute, on a defective switch in defendant’s railroad track in the mine, causing a car to be derailed and thrown against the plaintiff, whereby he Avas injured as charged- in the complaint.

Though the rulings of the court on the demurrers to the complaint and pleas are assigned as error, these assignments are not insisted on by counsel in argument, and therefore will not bé considered here; the same being regarded as abandoned.

The first question insisted on by counsel for appellant is one raised by requested instructions to the jury; the insistence being that, the plaintiff at the time of his injury having quit the work to which he was assigned, he was not in the employment of the defendant. The evidence shows that the plaintiff was at •work engaged in mining coal at what was known as “No. 5 West Turnout” in defendant’s mine on the day of the injury, and plaintiff’s testimony was that about 3 o’clock in the afternoon he became sick from bad air caused by blasting in the. mine during the day, and quit his work and was leaving the mine by the “haulage way” along the main slope out, •when he came to what was known as “No. 2 West Turnout,” where the superintendent in charge of the mine and of the employment of the plaintiff stopped plaintiff to inquire of him why he was quitting his work, and became engaged in a conversation lasting about 10 minutes, and it was during this time and at this place that plaintiff was injured by a “trip of cars” descending the slope into the mine, which was derailed and thrown against the plaintiff. The defendant’s evidence tended to show that the superintendent of defendant simply asked the plaintiff why he was quitting his work at that time, and that the plaintiff voluntarily loitered at that place, being under no duty to the defendant to remain there, when, if he had proceeded on his way out of the mine, he would have gotten out before the “trip of cars” made the descent, and thereby avoided the accident. If the plaintiff’s testimony is to be believed, when he was stopped and engaged in conversation by his superintendent, as testified to by plaintiff, the relation of master and servant during this time was not terminated by such detention or delay of the plaintiff. He was assigned to work at No. 5 west turnout by the superintendent. By the same authority he was detained at No. 2 west turnout, where the injury occurred. The relation between the defendant and plaintiff which existed by reason of the employment continued to exist after plaintiff ceaused to work until he had left the mine, or had a reasonable time to do so Avitliout interruption by no fault of his oaacu. See Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115, 42 South. 96. Charges 4 and 5, requested by the defendant, besides being otherwise faulty, Avere opposed to the A'ieAvs above expressed, and Avere properly refused. The cases of Wilson v. L. & N. R. R. Co., 85 Ala. 269, 4 South. 701, and Alabama. G. S. Ry. Co. v. Hall, 105 Ala. 599, 17 South. 176, as Avell as other cases of ours cited and relied on by counsel for appellant, are not in point; the facts in those cases being different from the facts in the case at liar.

While there Avas an escapeway out of the mine Avhich could be used in cases of emergency, and through Avhich plaintiff might have passed on the occasion Avith safety upon quitting his Avork, the evidence showed that the usual and customary way of the miners going out of the mine AAras through the “haulage way” in the main slope, the route traA'eled by the plaintiff at the time of the injury. This being true, it cannot be said that the plaintiff, in passing out through the “haulage Avay,” Avas Avanting in the exercise of that ordinary prudence and care which Avould impute negligence. The plaintiff, in passing out through the “haulage Avay” in the main slope, assumed the ordinary risks incident thereto in like manner as he assumed the ordinary risks incident to his employment in the digging of coal; but he did not assume the risk of the negligence of the defendant. The defendant’s requested instructions to the jury numbered 9 and 11 were opposed to these Adews, and Avere properly refused.

Charges 6 and 7, requested by the defendant, were an invasion of the province of the jury, and for that reason, if no other, were properly refused.

Charge 8, requested by the defendant, Avas faulty in seveial respects, and especially in putting upon the plaintiff an assumption of risk that might embrace that of the negligence of the defendant. The law is Avell settled, that, in cases of great emergency and peril, a person is not held to that Cool and deliberate exercise of judgment in conserving his safety that he would be under ordinary circumstances.

The evidence showed that the plaintiff was hurt, not by cars upon the track, but by the cars after they were derailed. The plaintiff, so far as the evidence shows, was in a safe place from the passing of the cars over the track, and would have been ■ uninjured, but for the derailment. His extreme peril and danger arose when the trip of cars descending the main slope jumped the track in close proximity to the plaintiff. His failure under these circumstances to hunt for one of the “dog holes,” which had been left along the sides of the main slope at a distance of about 30 feet apart, cannot be charged as contributory negligence on the part of the plaintiff, when in fact he did run to save himself, although the place he sought was less secure than the “dog holes.” Charge 10, as requested by the defendant, was opposed to these views, besides being faulty in assuming that No. 2 west turnout, where the plaintiff ran to escape, was obviously more dangerous than the “dog hole.” It was, therefore, properly refused. Charge No. 12, requested by the defendant, besides being incomplete, was unintelligible, and for that reason properly refused.

The third count of the complaint counted on a defective .switch. It is insisted by counsel for appellant that there was no evidence of any defect in the switch, and that, therefore, the defendant was entitled to the general affirmative charge under this count. There was evi“ dence tending to show that the latches used in the switch were unsafe on a slope, and that the same were at the time loose, and could be thrown by a car passing over the track, so as to change the switch, thereby derailing trailing cars. There was also evidence tending to show that immediately after the accident in question the latches were repaired. Under this evidence, it was open to the jury to infer that the derailment of the cars was the result of a defect in the switch, and therefore it was a question to be left to the jury.

We find no error in the giving of the charges requested by the plaintiff, as each of the charges given correctly states the law. The giving of a charge which is abstract or argumentative, when it correctly states the law, will not constitute reversible error.

.The sixth assignment of error, insisted on by counsel, relates to the introduction of the evidence. The witness Nabers was asked by the plaintiff with reference to other accidents or wrecks at the same place in defendant’s mine before the accident in question, when counsel for defendant interposed an objection, accompanied by a qualification, “unless he (witness) will state wlrat time.” The court thereupon adopted the suggestion of counsel and said: “Bring it dowm to a certain time within a few weeks,” and the question was then asked by counsel for plaintiff, “Well, within a few weeks?” To this question the defendant objected upon the ground “that the same wras irrelevant, immaterial, illegal, and incompetent,” which objection the court overruled. And the witness answered: “It was in a few weeks. It had been a month or two.” It was competent, relevant, and material to show that accidents or wrrecks had occurred at the same place within a short time previous to the accident in question, as tending to show7 knowledge on the part of the defendant of the defective condition of the switch at that place. There is evidence tending to show, and from which the jury wére authorized to infer, that the condition of the switch as to the loose latches was the same at the time of the accident- as at the time of the two previous wrecks. After the further examination by the plaintiff of the witness without objection in regard to two other wrecks at the same'place, in answer to a question not. objected to, the witness stated: “I said two. There were two wrecks within two months before this one that I know of.” The defendant moved to exclude this statement on the ground that it was irrelevant, immaterial, and incompetent evidence. If the grounds stated had been good, no objection having been made to the question, and the answer being responsive, the motion to exclude came too late. The defendant then cross-examined the witness at length, and at the conclusion of his cross-examination the defendant “moved to exclude all the evidence relative to this accident, which defendant had asked about.” It vas not proper for defendant to speculate with the witness on a cross-examination, and then move to exclude the evidence he had drawn out by his cross-examination.

The witness John A. Durden, who qualified as an expert, was asked by the plaintiff upon examination and rebuttal this question: “State whether or not these latches are safe on main slope?” The latches referred to were those on the switch, where the accident and derailment in question occurred.. The question was objected to by the defendant upon the grounds, that it called for illegal and incompetent testimony. The witness answered: “I did not take them to be safe.” The insistence here is that the question called for a. conclusion , and that, the answer was a conclusion of the witness. This insistence, is not tenable. The witness was examined as an expert, and as such only stated his opinion on the facts as to- whether the latches were safe ones on the main slope. , ...

There is no error in excluding the statement of the witness Keller,- on the motion of the plaintiff, that he (witness) “did not see what the plaintiff did at this particular moment, but, from his position afterwards, he must have remained sitting.” This was clearly but an opinion or conclusion of the witness, and not the statement of the fact that the plaintiff remained sitting.

We have considered all questions insisted upon in argument, by appellant, except ,the one.relating to the motion for a new trial. The insistence in this respect is that the verdict was, contrary to the weight of the evidence,' and that the court erred in not granting a new’ trial on this ground, and, furthermore, that the verdict was excessive. We are not prepared to say that the verdict was excessive, as there was evidence 'tending to show that the injury received might result in a permanent-.disability. There was. evidence, to support the verdict in, favor of the plaintiff, and, under the rule laid down in Cobb v. Malone, 92 Ala. 630, 9 South. 738, we are not .prepared to say that the trial court erred in over’ ruling the, motion for a new: ..trial. • ,

Finding no reversible error in the record, the judgment appealed from will be affirmed. ' •

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.