Cahaba Southern Mining Co. v. Pratt , 146 Ala. 245 ( 1906 )

SIMPSON, J.

This case was an action for damages for the death of plaintiff’s intestate, who was an employe of defendant (appellant). The summons was executed on defendant January 9, 1904, demurrer to the complaint was filed January 16, 1904, and pleas were filed January 2, 1905. Tinder a rule adopted by the court, previously, in accordance with the powers conferred by the special act establishing said court, and amendment thereto (Acts 1881-85, p. 216, § 1, and Acts 1888-89, p. 992), the pleadings in said case were to be heard during the first week in January, 1905, and said pleadings -were heard and settled on the 2d day of. January, 1905. On the 19th day of January, 1905, when the case came on for trial, the defendant, before announcing ready for trial, and claiming surprise, moved the court for permission to amend its pleas by adding the pleas shown in the record numbered A and B, respectively. Objection was made by the plaintiff, which was sustained by the court, and the defendant was refused permission to file such additional pleas. During the progress of the trial the defendant repeated the motion to be allowed to file said additional pleas, and the same was overruled by the court. It is the settled doctrine of this court that it is a matter within the discretion of the trial court to allow or reject additional pleas, proposed to be filed, after the defendant has pleaded, and the time for pleading, as prescribed by the rules of practice, has passed, and the exercise of this discretion is not revisable. — Steele v. Tutwiler, 57 Ala. 113; Foster v. Bush, 104 Ala. 662, 16 South. 625; Walker v. English, 106 Ala. 370, 17 South. 715; § 3304 of the code of 1896. As it stood in revised code 1867, § 2657, it was held to apply only to amendments to pleas to correct defects, and not to additional pleas, and the section has been readopted in successive codes with this interpretation.— Jones v. Ritter’s Adm’r, 56 Ala. 270, 282, 283. Consequently we cannot say that the court erred in refusing to allow these additional pleas to be filed. The record does not show any error thereon; hence they are not considered.

The only criticism offered to charges 2 and 4, which were given on request of the plaintiff, is that they ignore the question of contributory negligence. No evidence of contributory negligence is pointed out to us, and we find none in the evidence. Hence there was no error in giving these charges.

It was not erroneous to give charge 8, requested by the plaintiff. While there was some evidence tending to show that it was the duty of plaintiff's intestate to put up the props as he went on with his work, to look after the timbering for 50 feet back of the face of the heading, and, “if any props came out behind him, to tell the company about it,” yet there was no evidence that it was his duty “to inspect or maintain the props in the mine at the point where he was injured.”

Charge 4, requested by the defendant, was properly refused. It was misleading. In one sense of the word, and in common parlance, all such injuries are occasioned by an accident; but, in order to relieve the defendant of responsibility, it should be an accident which could not have been avoided by the exercise of proper precautions.

Charges 5 and 8, requested by the defendant, were properly refused. According to the evidence, it was open to the jury to find that the injury resulted from either one of two causes, to-wit, the unsafe condition of props or tlie unsafe condition of the car, or from both. It would, therefore, be improper to give a charge for the jury to find a verdict for the defendant founded only on the condition of one.

Charge 10, requested by the defendant, ivas properly refused, because first, it is elliptical, it not appearing clearly whether the servant referred to is the deceased, or some other servant; second, if it referred to the deceased, then it assumes that it was the duty of deeeosed to inspect the car, also that the deceased could tell by inspection that it Avas unsafe; third, if it refers to some other servant, Avhose duty it avrs to inspect the car and report its unsafe condition, then the defendant Avonld be liable for his negligence.

There was no- error in refusing to give charges 9, 15, and 18, requested by the defendant. The facts hypothesized in the charges do not correspond Avitli the facts set up in the pleas.

Charge 19 is subject to the same objection. Moreover, the statute does not make it the duty of the servant to give “notice to the defendant, or to some person intrusted by it with the duty of seeing that its ways and plant are in proper condition,” hut only “to give information thereof to the master or employer, or some other person superior to himself engaged in the service or employment of the master or employer.” — Code 1896, § 1749.

Charges 13,14,16, 20, and 21, requested by the defendant, were properly refused. The testimony in this case does not sIioav that the deceased was an independent contractor, but an employe. — Drennen & Co. v. Smith, 115 Ala. 396, 22 South. 442.

There was no error in refusing to give charge 7, requested by the defendant. The witness Kene Young testified that the deceased handed to her each month, for the use of his family, from $20 to $30, besides paying his commissary hill; also that he earned from $50 to $60 per month, and spent about $15 on his clothing, and bought some picks and shovels.

The bill of exceptions states that “during the argument * * * plaintiff’s counsel read to the jury a decision from the supreme court of Alabama, and endeavored to explain to the jury the m'eans by which it might arrive at the proper amount of damages,” and that “the defendant moved to exclude such statements made by plaintiff’s counsel.” There is no merit in this objection, as the counsel have a right to argue to the jury the manner in which they are to ascertain the amount of the verdict, while it is for the court to instruct them what mode is correct.

The judgment of the court is affirmed.

Weakley, G. J., and Tyson and Anderson, JJ., concur.