Opinion
7 Div. 208.
November 8, 1923.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
Percy, Benners Burr, of Birmingham, for appellant.
A failure to warn count must set out facts showing a duty to warn. Horan v. Gray Dudley Hdw. Co., 159 Ala. 159, 48 So. 1029; T. C. I. Co. v. Williamson, 164 Ala. 54, 51 So. 144. An employé subjecting himself to an obviously great danger is guilty of contributory negligence, even though in obeying the command of a superior. Coosa Mfg. Co. v. Williams, 133 Ala. 606, 32 So. 232; Ritch v. Kilby Frog Switch Co., 164 Ala. 131, 51 So. 377. It was error to charge that plaintiff could recover unless his conduct was palpably negligent. B. R., L. P. Co. v. Bynum, 139 Ala. 389, 36 So. 736.
Mathews Mathews, of Bessemer, and Hill, Hill, Whiting Thomas, of Montgomery, for appellees.
It is the imperative duty of the operator or superintendent of a mine to ventilate and render it free of noxious gases. Acts 1911, p. 515; Walker v. Birmingham C. I. Co., 184 Ala. 425, 63 So. 1012; Segrest v. Roden Coal Co., 201 Ala. 382, 78 So. 756; Ala. F. I. Co. v. Minyard, 205 Ala. 140, 88 So. 146; S. S. S. I. Co. v. Green, 159 Ala. 182, 49 So. 301; Bessemer L. I. Co. v. Campbell, 121 Ala. 50, 25 So. 793, 77 Am. St. Rep. 17; Republic Iron Steel Co. v. Williams, 168 Ala. 612, 53 So. 76. The servant will not be held guilty of negligence in pursuing the work he is directed by the master or superior to do. A. B. A. v. Reynolds, 201 Ala. 520, 78 So. 875; Birmingham M. C. Co. v. Skelton, 149 Ala. 465, 43 So. 110; Pioneer M. M. Co. v. Smith, 150 Ala. 356, 43 So. 561; Coosa Pipe Co. v. Poindexter, 182 Ala. 656, 62 So. 104.
Under our previous decisions, count X of the complaint must be held sufficient as against the several grounds of demurrer. Republic I. S. Co. v. Williams, 168 Ala. 612, 53 So. 76; Wilson v. Gulf States Steel Co., 194 Ala. 311, 69 So. 921; Republic I. S. Co. v. Harris, 202 Ala. 344, 80 So. 426. Appellant cites to the contrary the cases of Tenn., etc., Co. v. Williamson, 164 Ala. 54, 51 So. 144, and Horan v. Gray, etc., Co., 159 Ala. 159, 48 So. 1029. The first of these deals with a complaint drawn, as was count X here, under the third subdivision of the Employers' Act (Code. § 3910); but there the count demurred to did not charge that the order was negligently given. This distinguishing feature of that case was fully discussed by Mr. Justice Sayre in Republic I. S. Co. v. Williams, 168 Ala. 612, 53 So. 76. The case of Horan v. Gray, etc., Co., 159 Ala. 159, 48 So. 1029, did not involve the giving of a negligent order by a superintendent, and is therefore inapt.
Appellant's chief contention is that it was entitled to the general affirmative charge on the whole evidence, whether on the theory that no breach of duty to the intestate was shown, or that, in any case, the intestate was himself guilty of contributory negligence sufficient as a matter of law to bar a recovery. We have examined the evidence with studious care, and we think it presented two essential issues of fact, upon which the jury passed in reaching their verdict; (1) Was it the duty of defendant's mine foreman, Echols, in ordering the intestate to work in the third cross-cut, and to hang the curtain brattice reinstating the circulation through the gas-laden area above, to warn him of the danger of encountering gas in dangerous quantities thereafter in the cross-cut itself? (2) Did the intestate, by reason alone of his service and experience as brattice man, have sufficient knowledge of the danger inherent in the situation to make his conduct in going into the cross-cut, after hanging the curtain, an obviously dangerous act, amounting to contributory negligence?
As to the first question, the testimony of Lawrence was undoubtedly sufficient to support a finding of breach of duty by Echols. It is true that Echols says he instructed the intestate to make tests of the gas as often as necessary with his safety lamps, but that was not the equivalent of warning him of the specific danger he encountered in the cross-cut immediately after hanging the brattice curtain and restoring the circulation through the heading above. Moreover, the testimony of plaintiff's witness Hawkins tended strongly to negative the giving of even that precautionary instruction.
As to the second question, notwithstanding the intestate's knowledge of the presence of gas in dangerous quantities in the face of the heading, and of the general dangers resulting from such a situation as was there presented, there is nothing in the evidence to show, as a matter of conclusive fact, that he knew enough about the accumulation and movements of gas, in connection with a suspended and restored circulation of the air, to stamp his act as negligent as a matter of law. The jury might have so found it, but they were not bound to do so.
Another contention of appellant's is that the evidence fails to show that Echols ordered the intestate to go into the third cross-cut in the manner and at the time he did, and hence that essential allegation of counts H and X is not proven. The order given was general — to do certain work in this cross-cut — and the intestate and his helper were there engaged in doing it, and there is nothing in the evidence to force the conclusion that, when they went under the curtain towards the air course end of the cross-cut, they were acting outside the scope of the order, or were not performing some minor task or duty incidental to the main work, before leaving the heading for the day.
We do not find anything in the evidence to support a finding that defendant, or any of its servants, was guilty of negligence in the operation of this mine, or in its system of ventilation, or in the mode of procedure adopted by the mine foreman after the gas feeder was uncovered near the face of the heading.
Refused charge 8 is clearly misleading in its application to the negligence here imputed to the mine foreman Echols.
The substance and the principles of the other refused charges are sufficiently covered by given charges 2, 4, 5, 6, and 7, and the general oral charge. We do not think there was any prejudice to defendant in this respect.
Excerpt No. 4 from the oral charge, to which the exception was duly taken, instructs the jury that plaintiff would be entitled to recover (on certain findings of fact) unless they thought "that his conduct was so palpably negligent, and that his negligence contributed to his injury, to that extent he wouldn't be entitled to recover." "Palpably" means obviously or readily apparent, and imposes too high a degree of proof on the issue of contributory negligence; and though the rule was elsewhere correctly stated by the trial judge, it is impossible for us to know which statement the jury accepted and followed as their guide. We have often held in such cases that the error must reverse the judgment.
Excerpt 5 from the oral charge, to which exception was duly taken, embodies an unquestionable error. Standard mortality tables do not prove conclusively what is one's expectancy of life. They show merely the probability of the duration of life at any given age, based on the law of averages. The normal probability may be qualified by the physical condition of the injured person, his general health, his personal habits, and the character of his employment. M. L. C. Ry. Co. v. Chambliss, 97 Ala. 171, 175, 11 So. 897. And hence the mortality tables are merely evidence to be considered by the jury in connection with other relevant evidence. Birmingham Mineral R. R. Co. v. Wilmer, 97 Ala. 165, 170, 11 So. 887.
In instructing the jury that damages, if awarded, should be based on a life expectancy of 27 years, the trial court invaded the province of the jury with probably prejudicial effect, as held in the recent case of Little Cahaba Coal Co. v. Arnold, 206 Ala. 598, 91 So. 586.
Let the judgment be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
THOMAS, J., limits his concurrence in the reversal to the error found in excerpt No. 4 of the oral charge.
I rest my concurrence of reversal as indicated in the opinion. I cannot concur in the treatment given that part of the oral charge as follows:
"In other words, you take his earnings, the amount of his own expenses, and the balance of that, she is entitled to such a sum as, put at interest, will produce for her the amount that he was contributing to her and her children's support, for the 27 years, at such a rate as that the principal will be exhausted at the end of the 27 years."
The evidence shows:
"He was 41 years of age at the time of his death. He was in good health and worked regularly. He was making about $6 per day at the time of his death. He spent upon himself — that is, his personal expenses were — about $250 per year. He brought the rest of the money home to me. I spent it on the family. He left six children; the oldest is 16 and the youngest one 3 years old."
In the absence of evidence to the contrary, or tending to rebut the presumption of the life expectancy shown by the mortality table in evidence, the court had the right to instruct the jury as was done with regard to the life expectancy of plaintiff's intestate. The charge shown by the record in Marbury Lumber Co. v. Heinege, 204 Ala. 241, 85 So. 453, is somewhat like that for consideration here, except that no exception was there reserved to the instruction given. See Thomas Furnace Co. v. Carroll, 204 Ala. 263, 267, 85 So. 455; L. N. R. Co. v. Porter, 205 Ala. 131, 87 So. 288; Alabama Co. v. Brown, 207 Ala. 18, 29, 92 So. 490; Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 40 So. 280; L. N. R. Co. v. Trammell, 93 Ala. 350, 9 So. 870.