Tennessee Coal, Iron & Railroad v. Herndon , 100 Ala. 451 ( 1893 )

COLEMAN, J.

The action is under the. employer’s liability act, and was brought to recover damages for injuries sustained by deceased, and which caused his death. The complaint consists of three counts, each alleging defects in the ways, works and machinery used for removing cinder or slag from iron furnaces to a place of waste. The-defects complained of are clearly stated in the complaint, the first count, averring a deficiency in the number of trunnion bolts, and that those used were in a defective condition ; the second count, that there were no safety chains, to the pót or vessel, in which the cinder or slag was removed; and the third count, averred that the defects, in the trunnion bolts, and the absence of safety chains, concurred in causing the injury.

The third plea of the defendant averred generally “that the plaintiff’s intestate was himself guilty of negligence which proximately contributed to his alleged injury.” A demurrer was sustained to this plea on the grounds, that the plea did not definitely state, in what the contributory negligence consisted, but merely averred contributory negligence generally, and this ruling of the court is assigned as error, we have held that under our system, pleadings in damage suits consist of but little more than averments of conclusions. Many pleas in form like the one under consideration, have passed this court, unchallenged, but there had been no objection raised against the plea in the trial court, and were regarded by us as a plea in short by consent. In the case of Phœnix Ins. Co. v. Moog, 78 Ala. 301, this court held a plea to be bad which consisted wholly of a mere conclusion of law. There should be a succinct statement of facts, relied upon as a cause of action, and also in stating the grounds of defense. The court did not err in sustaining the demurrer to this plea.

The defendant pleaded specially, in bar of the present action, that plaintiff’s intestate was a minor at the time of his death, and that prior to the bringing of the action, plaintiff’s mother brought suit against the defendant, to recover damages for the killing of her son, and that in both suits the cause of action was the same. A demurrer was sustained to the special plea, and this is assigned as error. A copy of the declaration in the suit by the mother is attached to the special plea, and made a part of it. An examination of the declaration shows that the complaint in the two cases are precisely alike, except that in one, it is averred that deceased was a minor, that his father was dead, and that plaintiff was the mother. The negligence averred is precisely the same, and both suits were brought under the employer’s act. It has been settled, that no one was authorized to sue under the employer’s liability act to recover damages for injuries, which caused death, except the personal representative. We need not repeat the argument.—Lowell v. De-Bardelaben. 90 Ala. 13; Section 2590 of the Code. It has also been expressly decided, that under the employer’s act the personal representative could not recover for the time of the minority of the deceased, where it appeared that the parents of the deceased minor were entitled to and received the wages earned by him, and this presumption of law arises in favor of the parents, until otherwise established.—Ala. Conn. Coal & Iron Co. v. Pitts, 98 Ala. 285; Williams v. R. R. Co., 91 Ala. 635; 9 So. Rep. 77. It being apparent from the face of the pleadings, that the mother could not maintain the action brought by her, under the employer’s act there was no error in sustaining the demurrer to the special plea. The act of Jan. 27,1885—Acts of 1884-5, p, 99, and which was codified as section 2588 of the Code of 1886—which gave a right of action to parents, for the death of a minor child caused by a wrongful act or omission,” permitted the bringing and the maintaining of such an action by a personal representative only, “in the case of the death” of the parents. This limitation, in haec verba, was omitted in the codification, and has given rise to some confusion. In the case of L. & N. R. R. Co. v. Williams, supra, we had occasion in part to construe section 2588 of the Code. Considered further in connection with section 2589 and the employer’s act, section 2590, and the constructions placed upon these sections, quere ? Can a personal representative sue under section 2588 of the Code except as provided in the original act”—in case of the death of the parents V” The recovery under this section is wholly for their benefit, or in case of their death, after the injury, for the benefit of their estate, and not for distribution as provided in section 2589 and 2590, supra. There were two objections to questions propounded by plaintiffs to witnesses, and the overruling of the objections are assigned as error. These assignments are not referred to in brief of counsel, and we presume are not insisted upon. One of the questions may be objectionable in form, but the answer disclosed a material and relevant fact. Moreover the same facts were testified to in response to question without objection. The evidence in both instances tended to show knowledge of the defects averred in the complaint. ,

We are of opinion there was no error in the refusal of the court to give the instructions requested by the defendant upon which errors are assigned.

Charge No. 1, refused, instructed the jury to find for the defendant under the second count of the complaint and Charge No. 2, instructed the jury to find for the defendant generally. It was fairly proven in this case, that there were no safety-chains in the pot. The evidence for the defendant tended to show, that, when the slag became chilled on top, so that -it would not pour or run out the pot could be emptied more safely without than with safety-chains. This was one phase of the evidence. We are not prepared to say that under the evidence in this case, the jury were not authorized to infer differently. The reason given for the opinion that the pot could be emptied more safely without safety-chains, seems to be, that the pot would tilt entirely over and leave the frame work or trucks upon which the pot rested, upon the track, whereas if there had been ‘chains, the momentum given to the pot, would have carried the frame work or trucks over with it. The jury were not compelled to take this view of the testimony. The safety-chains might have prevented the pot from going over altogether. That was their purpose. Possibly if the safety-chains had held the pot to a proper position, there would have been no such momentum or jerk as to throw deceased over on the hot slag or cinders. These were questions for the jury and the charge was properly refused.

Charge No. 3, was properly refused. It was calculated to impress the jury that there was no evidence before them tending to show, that the pot could not have been dumped, by persons standing on the ground, whereas there was evidence tending to show, that on account of the condition of the road bed and of the slag, it was necessary to stand on the plates. It is further objectionable in stating the rule, which applies when there are two ways of performing a duty, and the injured party selects the more dangerous way. The fact that the party was injured because of the way selected, when if he had selected the other way, the injury would have been avoided, alone, does not fix upon him contributory negligence. The result is not the true test. If a party selects a dangerous way to perform a duty when there is a safe way, knowing the way selected to be dangerous, or if the danger “is apparent” or “obvious” then he assumes the risk, and is guilty of contributory negligence. The chai'ge fails to state the principle correctly, and was properly refused.—L. & N. R. R. Co. v. Orr, 91 Ala. 548.

The charges which limited the recovery to a certain amount, need not be considered, as the finding of the jury did not exceed the amount specified. We would sav however, that it would be hazardous for the court in a damage suit uj)on such evidence as was introduced to prescribe and limit definitely the amount of recovery. The charges refused, which were predicated upon a probability of deceased marrying if he had lived, and of his having, children born to him who might have survived him and inherited his estate, were all properly refused. These are remote and purely conjectural contingencies and can not be considered by a jury in estimating the amount of recovery.

We find no error in the record available to appellant.

Affirmed.