Drennen & Co. v. Smith , 115 Ala. 396 ( 1896 )

HARALSON, J.

There are many assignments of error, but we confine ourselves to such of them as are insisted on by appellants’ counsel.

The case was tried and went to the jury alone, on the 6th and 19th counts in the complaint. The 19th count was framed under' the second sub-division of section 2590 of the Code, and in it the plaintiff alleged he was a servant or employe of defendants in the capacity of a miner or coal digger, and at the time of the fire was engaged in said business of defendants, and the injury complained of is attributed to the negligence of one Reid in the service or employment of defendants, who had sirperintendence, &c. The 6th count alleges that plaintiff was working in the mine of defendants, but not as a servant or employe, and counts upon the negligence merely of defendants in running its ventilator fan, etc. All the testimony introduced on the trial, purports to be set out in the bill of exceptions, as abstracted.

James M. Smith, the father of plaintiff j testified substantially that plaintiff was eighteen years old ; that he (the father) made a contract with defendants by which his two boys, one of whom was the plaintiff, should mine coal for defendants at 42-2- cents per ton ; that witness was to furnish “the tools and powder and stuff, and the bank boss was to have control of the work;” that he made arrangements that his sons were to work in a room with Whitfield Moore, who was an expert miner; that they got one-half, and Moore, one-half of the coal cut; that defendants paid for the coal, dug by plaintiff, by checks which were received and collected by witness. The plaintiff testified, that he and his brother, Oscar, were running a check of their own; that they got pay for one-half of the coal dug in the room, and that Moore got the other half. Mel. Drennen, one of the defendants, testified that plaintiff’s father wanted work in the mine for his two boys, and witness referred him to the superintendent, Reid. Ustick, a witness for plaintiff, testified that one Whaling was the bank boss inside the mine, and that he (Whaling) had superintendence of the inside work. The foregoing is all the testimony in the abstract bearing on the contract under which plaintiff worked for defendants.

When the testimony closed, the defendants asked the court in separate charges to instruct the jury, that under the evidence in this case; the plaintiff was not entitled to recover either under the 6th or the 19th counts.

The testimony as to the contract was without conflict. As stated in the language of James M. Smith, the father of the plaintiff, who made the contract, it was, “that he hired the plaintiff to work in the mines for Drennen & Co. ; that the contract between him and Drennen & Co. was, that his two sons, including plaintiff, were to cut coal for 42i cents per ton for all the coal they could dig, and that he (Smith) was to furnish the tools and powder and stuff, and the bank boss was to have control of the work.”

It was the duty of the court, the terms of the contract being undisputed, from which adverse inferences could not be drawn, to construe it.—Foley v. Felrath, 98 Ala. 176, 181, and authorities there cited. We apprehend, that under the terms of said hiring, as stated above, the plaintiff’s son was an employe of the defendants, and not an independent contractor ; and that the charge which requested, that under the evidence, there could be no ‘recovery under the 6th count, should have been given. This, it may be here more conveniently stated, disposes of charges, such as the 2d and 11th, asked by defendants, based on the theory that under the evidence, a recovery might be had under the 6th count.

It "caiThardly be doubted that the testimony justified the court infleaving the jury to. determine the question of negligence vel non. Even if the testimony had been undisputed, if there was room for an inference of negligence, the jury should have been left to determine it. Eureka Co. v. Bass, 81 Ala. 200 ; Mayor, &c., v. Cary, 84 Ala. 469. But there was considerable conflict in the testimony on this point. The running of the suction fan, as the facts show, caused a draught upward through the man-way, and this in turn caused a current of air down the slope. There was also a current of air up the east side of the slope caused by the hot-pipe. The fire was on the east side of the slope in an old abandoned entry about six hundred feet below the surface. It is shown that the smoke passed from that old entry into the slope, and it was carried by the draught, we may .presume, to the bottom of the mine and went thence into the man-way. It is apparent that the running of the fan would tend to drive the smoke to the bottom of the mine where the plaintiff was at work. It would seem, therefore, that as soon as the .agents of defendants in charge of the mine learned where the fire was, it was their duty to stop the running of the fan. The experts who testified, however, differed as to what was the superintendent’s duty when it was discovered that there was a fire in the mine. Some of them said that he should have immediately stopped the fan. Others said that he should have first ascertained where the fire was and if there were no men in the mine above the fire, then the fan should have been stopped. Others thought that it was his duty to go and make an examination before determining whether or not to stop the fan. The testimony was conflicting as to how much time elapsed after the fire began before the superintendent learned of it and learned where it was ; as to whether or not he acted promptly; as to when the fan was stopped, and as to whether or not it was started again. It seems reasonably clear from the testimony that it was stopped twice, and it must, therefore, have been started after it was stopped the first time. It is not clear who started it the second time. There was much excitement prevailing and a large congregation of people about the mouth of the mine. There was room for an inference that the defendants’ agents were not reasonably careful in seeing that the fan was not started a second time, even if they properly stopped it in the first instance. It was, therefore, a matter for the jury to determine whether or not the defendants were negligent, and the general charge as requested by defendants on the 19th count was properly refused.

If not abstract, charge No. 7, which was refused, asserts a correct proposition of law. To be actionable under sub-division 2, of section 2590 of the Code of 1886, the injury must be caused by the negligence of some person in the employment of the master, “who has superintendence entrusted to him, while in the exercise of such superintendence.” The negligence must be that of some agent or employe, who is in the exercise of superintendence, and to whose negligence in such exercise, the disaster is traced. If caused by the negligence of some one not in the employment of the master, or by one in his service as employe, without any superintendence entrusted to him, the master would not be liable.—The City Council v. Harris, 101 Ala. 570. This principle the charge was intended to assert, and was evidently framed under the 19th count. We have, however, been unable to find in the abstract a statement of the evidence tending to show that the smoke was carried or sucked into the man-way, not by the revolving of the fan before House shut it off by Reid’s order, but by reason alone of its having been set in motion a second time by some one unknown or unauthorized by Reid. For this reason it was properly refused.

The 14th was also .properly refused. The jury may have had some doubt as to the person whose negligence caused the injury, and yet have been reasonably satisfied that it arose from the negligence of Reid, the superintendent.

At the instance of the plaintiff the court gave a charge numbered 18,- which was as follows : “If the jury believe the evidence, that defendants are responsible for the proximate consequences of negligence on the part of John Reid, if any, in the exercise of his authorized superintendence, on the 20th day of June, 1894, no matter what the defendants’ connection with the mine may have been before that day.” The word “that” employed in the charge, is evidently a clerical error, which is self-corrective. It should be read “the,” or “then” or entirely omitted. A correct proposition of law is asserted here, as seems to be conceded by appellants’ counsel, and is applicable to the 19th count. The proof showed without dispute that Reid was the superintendent in charge of the mine, and his negligence, therefore, was attributable to defendants. It is contended that this charge assumed as a fact that Reid was the authorized superintendent of defendants, but there was no conflict in the proof as to this fact. The charge is awkwardly framed, but it was the duty of the defendants to ask an explanatory charge, if of any téndency to mislead.—DeLacy v. Tillman, 83 Ala. 155.

For the errors indicated, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.