Sloss-Sheffield S. & I. Co. v. Sharpe

SAYRE, J. When this cause was here on a former appeal 156 Ala. 284, 47 South. 279, it was ruled that the demurrer to the fourth count of the complaint should have been sustained, because, in addition to the duty fixed by section 2914 of the Code of 1896 upon the operators of mines to provide and maintain ample means of ventilation for the circulation of air through the main, entries and other working places in their mines, to an extent that will dilute, carry off, and render harmless the noxious gases generated in the mine, the count sought to impose upon the operator's of mines the further duty to provide and maintain a circulation of air suffito brush out other explosive substances. Upon its return to the trial court this ruling was met by an amendment which eliminated that objectionable feature of the count. Demurrer to the count as thus amended was' interposed, and again overruled, and this ruling is made the subject of the sole assignment of error. The assignment now is that the count failed to aver that there were noxious gases generated in the mine, and since the presence of noxious gases generated in the mine is the condition upon which is predicated the duty enjoined by the statute, the count fails to show a breach of the statutory duty. The count avers that the plaintiff was burned by a fire in the mine where he was at work] “said fire being caused by the ignition or explosion of gas in said mine.” No doubt the Legislature had not in contemplation the possibility of noxious gases in mines other than such as are generated there. The purpose was to require that noxious and explosive gases shall be swept out. Such was the duty of the operators of the mine without the statute. It is possible that noxious and explosive gases may find their way into mines, so that it could not be said that they were generated there, and doubtless the count in question is [435] defective, in that it alleges inferentially only that there was an explosive gas in the mine; but this defect, and the failure to- allege that the gas was generated in the mine, if that was necessary in any case, were not pointed out by the demurrer. We cannot, therefore, on the record presented, affirm that there was error in the ruling complained of. Nor did the count need the help of an averment that the failure to observe the statute was negligent. Fa.ilure to observe a duty imposed by positive mandatory statute is negligence per se. — Kansas City, M. & B. R. R.. Co. v. Flippo, 138 Ala. 487, 35 South. 457. Affirmed. Simpson, McClellan, and Mayfield, JJ., concur.