Opinion
2 Div. 657.
April 4, 1918.
Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.
Charles A. Calhoun and John T. Glover, both of Birmingham, for appellant. Stokely, Scrivner Dominick, of Birmingham, and John T. Ellison, of Centerville, for appellee.
In the case of Walker v. Birmingham Coal Iron Co., 184 Ala. 425, 63 So. 1012, in construing section 1016 of the Code of 1907, we held that it was the imperative duty of the mine owner or superintendent to keep the mine swept out and freed from noxious gases generated therein, that this was a nondelegable duty, and that the mere furnishing of the means would not suffice. Section 40 of the Act of 1911, p. 515, while succeeding section 1016 of the Code of 1907, makes no practical change except to include explosive as well as noxious gases and to also provide that the minimum amount of air to be supplied shall be 100 cubic feet per minute per man and 500 cubic feet per mule or horse. We still think that it was the intent of the Legislature to protect the miner from the danger of noxious and explosive gases generated in the mine, and that this is a nondelegable duty, as held in the Walker Case, supra. Had the Legislature provided merely the supplying of a certain amount of air, instead of requiring that the gas be diluted, carried off, and rendered harmless, the mine owner would, no doubt, meet the statutory requirement by supplying the requisite amount. But this was not done, and the amount of air provided is a legislative ascertainment that nothing short of the amount of air so prescribed will accomplish the purpose. The result is the law requires the mine owner, or superintendent, to see that all noxious and explosive gases generated in the mine are so diluted or carried out as to render the same harmless, and that nothing less than air to the extent of 100 cubic feet per man per minute and 500 cubic feet for mule or horse will accomplish the purpose.
It is true that in the opinion upon rehearing in the Walker Case, supra, we said it "may be" that the act of 1911 would change the rule, and that the mine owner would meet the requirement when he furnished the requisite amount of air. This expression, however, was in no sense a construction of the act of 1911, which did not apply to the case under consideration, and it was not then realized that the act, instead of prescribing the amount of air, merely fixes a minimum amount. The charge, copied in assignment of error No. 1, given for the defendant, did not conform to the statutory requirement, as it called for a finding for the defendant if it provided ample means of ventilation, but omitted the necessity of maintaining the means or appliances to the extent that the gas would be diluted or swept out so as to render the same harmless. Nor can the giving of said charge be justified upon the suggested idea that the complaint is so worded as to entitle the defendant to a verdict if the proof failed to show a noncompliance with either conjunctive averment under the case of Birmingham Ry. Co. v. Baylor, 101 Ala. 488, 13 So. 793, and other cases cited. The complaint followed the statute, and the gravamen of the action was not a mere failure to provide the means, but to provide and maintain the same to the extent as required by the statute, and the plaintiff would meet the averment by proof of a failure to supply the air to the extent of accomplishing the purpose, whether it was due to the insufficiency of the means or a failure to operate and maintain the same even if amply and sufficiently provided.
The trial court erred in giving the charge for the defendant, copied in the second assignment of error. If not otherwise bad, it charges the plaintiff's intestate with the act of any one in leaving the curtain up at the ninth entry. The plea charges that the intestate left it up, but the charge does not confine it to the plaintiff or to one for whose act the defendant may not be responsible. From aught that appears from the charge, the panel may have been left up by some servant or agent of the defendant other than the intestate, charged with the duty of maintaining and operating the ventilating system, and keeping the panel down may have been essential to a proper ventilation. Of course, if the intestate left it up, and that was the proximate cause of the injury, the defendant would be entitled to a verdict under its special plea invoking this defense. Or if the fire was caused proximately by the panel being left up by one for whose act the defendant was not answerable to the intestate, the defendant would not be liable, as the injury did not thus result from a breach of the statute, but by some intervening act of the intestate, or other person for whose act the defendant was not liable; but the charge does not confine the raising or leaving the panel up to one for whose conduct the defendant was not responsible. Charges set out in assignments of error 3, 4, 6, and 9, if not otherwise faulty, possess the same vice as the one set up in assignment numbered 2. The men, or some of them, referred to in the charges may have been charged with the duty of looking after the ventilation of the mine. These charges are not so worded as to be governed by the defendant's plea 8.
The charge copied in the fifth assignment of error fully hypothesized the material averments of defendant's plea 6, to which no demurrer seems to have been interposed, and whether said plea would have withstood an appropriate demurrer we need not decide as it is sufficient to say that the giving of this charge was not error under said plea 6.
The charges copied in assignments of error 7 and 8 seem to conform to defendant's pleas of contributory negligence.
The charge copied in the tenth assignment of error could probably have been refused without error, as it is not predicated upon any issue presented by the pleading, as there is no count for a failure of the fire boss to examine the working place, though the giving of same was not reversible error.
The judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
McCLELLAN, SAYRE, and GARDNER, JJ., concur.