Foley v. Pioneer Min. & Mfg. Co. , 144 Ala. 178 ( 1906 )

DOWDELL, J.

The defendant’s pleas numbered 3 and 4 were each faulty in averments of facts constituting alleged contributory negligence, and the demurrers interposed to these pleas should have been sustained. The-third plea does not aver' any duty rested on the plaintiff’s intestate to- order and direct the operation of the fan, or that it was not at the time being duly operated, or that if it was not running that he knew it or by due care could have known it, or that he knew that it was necessary for the fan to be operated in order for the “man-way” to be a safe place to work. While the 4th plea avers a duty resting on plaintiff’s intestate to see that the fan was properlv operated, it does not aver that the deceased negligently went into the man-way.

Assumed risk when set up as a defense, is subject-matter for a special plea. There is a well defined distinction between assumption of risk and contributory negligence, still both of these defenses are in confession and avoidance of the plaintiff’s action, and cannot be availed of under the general issue, but must be specially pleaded.

The statute, § 2914, Code 1896, in reference to the ventilation of mines, provides as follows: “The operator or superintendent of every coal mine, whether shaft, slope or drift, shall provide and hereafter maintain, ample means of ventilation for the circulation of air through the main entries and all other working-places to an extent that will dilute, carry off, and render harmless the noxious gases generated in the mines. It shall be the special duty of the inspector and his associates to carry out the provisions of this section; and it shall also be the duty of each and every mine-operator and mine-boss to assist the inspector and his assistants in carrying into effect said provisions.”

The duty imposed by the statute is imperative and the employee, or workman, in the absence of knowledge to the contrary, has a right to assume that the mandate of the statute has been obeyed by those upon whom the duty is imposed. It matters not from what cause the noxious gases generated in the mine may arise, the duty of ventilating for the purpose of diluting, carrying off, and rendering harmless such noxious gases remains the same.

In reference to the rulings of the court on the admission and rejection of testimony relative to the condition of the mine before 'and after the alleged accident, the rule may be stated as- follows: “Evidence of conditions before and after the accident may be received where it is also shown that the conditions testified to remained unchanged down to the occurrence of the injuries or the time to which the evidence relates; * * * * so evidence is admissible of conditions existing so short a time before or after the accident as, under the circumstances, to warrant an inference of fact that the same conditions existed when the injuries were received.” — 21 Am. & Eng. Ency. Law (2nd ed.) 517 and 518; Birmingham Union Railway Co. v. Alexander, 93 Ala. 133, 9 So. Rep. 525.

The evidence showed without conflict that there could have been no other cause for the existence of white damp in the man-way where the alleged accident occurred, if in fact any white damp existed there, than that of the shot or blast which had been made in the,man-way at three o’clock p. m., about an hour or an hour and a half before the plaintiff’s intestate entered it. Under these circumstances, we think the evidence of tihe witness Penny as to the conditions-of the man-way the next morning, about thirteen hours after the alleged accident, as to the existence of white damp in the man-way at that time, was competent and relevant.

There is no merit in the objection to the question which was propounded to the witness Naff. This witness was shown to be an expert, and it was competent for him to give his opinion as to the cause of death, predicated on the facts stated in the question, it having been shown that the witness examined the deceased after death, and also that he had knowledge of deceased’s previous physical condition.

If the negligence of the defendant was the proximate cause of the death of plaintiff’s intestate, the fact that the weak physical condition of the deceased contributed in a measure to his death, would not acquit of liability.

There were exceptions reserved on the trial to portions of the court’s oral charge to the jury, also to the refusal of certain written charges to- the plaintiff and the giving of others for the defendant, bnt it is not necessary, after what; we have said above, to consider in detail these- exceptions, since what we have stated as the law applicable to the case will be a sufficient guide on another "trial.

The judgment appealed from is reversed and remanded.

Haralson, Anderson and Denson, JJ., concurring.