Whitmore v. Alabama Consolidated C. & I. Co.

ANDERSON, J. Count 3 of the complaint failed to specify the defect in the ways, works, or plant, and was subject to the demurrer which was sustained to same.— Whatley v. Zenida Coal Co., 122 Ala. 127, 26 South. 124. The case of Jackson Co. v. Cunningham, 141 Ala. 206, 37 South. 445, is not in conflict with the present holding. There the court construed the complaint as ■charging a defect in the track, and which specified or designated the ways, works, or plant. Here there is no attempt to specify or designate. Counts 5, 6, 7, 8, and 9 evidently attempted to state ■a cause of action under section 1019 of the Code of 1907, for a failure to supply oil, bandages, - etc. The mine described in the case at bar is an iron mine, and not a ’■coal mine; but conceding, ■ without deciding, that chapter 30 does not apply exclusively to coal mines, section 1019 is intended for the protection of employes engaged ■at a mine, and not persons who are not so employed.— Wolf v. Smith, 149 Ala. 457, 42 South. 824. Counts 5, 6, and 7 merely aver that the plaintiff’s intestate was working in the mine, and do not show that he was an ■employe -and the trial court did not err in sustaining the demurrers to these counts. [129] Counts 8 and 9 aver that the plaintiff’s intestate was working in the mine, and while in the discharge of his duty, etc. But if this showed that he was an employe, which we do not decide, these counts failed to state a cause of action. The counts do not aver that the acts or omissions caused the death of the intestate, but that they merely aggravated or intensified his pain and suffering. This cause of action did not survive, and a suit for- the matters complained of and the result of same could not be maintained by a personal representative. Sections 2486 and 8912 give the personal representative the right to sue only for acts and omissions causing death, and not for those merely causing pain and suffering. The demurrdrs to counts 8 and 9 were properly sustained. This case was tried under counts 1, 2, and 4. Counts 1 and 4 are under the. common law, and for a failure to provide the intestate with a reasonably safe place in which to do his work. There is no proof that an unsafe place was provided, as the place was reasonably safe, when the intestate commenced to work. On the other hand, if the condition of the air, which made it necessary to snuff the lamps in order to see, could be ascribed as the proximate cause of the explosion, which we do not decide, then 'this condition arose from á defect occurring after the intestate went to work in the mine, and not from a failure on the part of the master to provide a safe way in which to perform the work. The only evidence tending to show the cause of the explosion, aside from the inference that the intestate did so himself in handling the caps or permitting his lamp to come in contact therewith, was that the caps were ignited by sparks from the lamp wicks of the miners, produced by snuffing the lamps, and that said snuffing was made necessary in order for them to see, owing to [130] the condition of the air, and which said condition of the air was due to a defect.in the air shaft. The evidence shows that there was an air shaft, that it was good and sufficient when the intestate started to-work, and that it became defective after the intestate-had commenced work. The master is under the duty' of using ordinary care to furnish the employe with place, ways, and appliances reasonably safe for use; but by the law, as it has been recognized'by this court, the-duty of maintaining such safe conditions may be discharged by committing its performance to agents carefully selected for competency and fitness. — Woodward Iron Co. v. Cook, 124 Ala. 353, 27 South. 455. The evidence show's that the mine was reasonably safe when the intestate started to work, and that the defect arose afterwards, and after the control and supervision of the mine had been delegated to McDuffie. There was, therefore, no proof in support of counts 1 and 4. Nor was there any proof in support of count 2. It cannot be said, as matter of law, that the placing of caps or dynamite in a mine is negligence, and there was. no proof that these were negligently placed where they were. Neither can negligence be imputed to the defendants, under the doctrine of res ipsa loquitur, especially when considered with the evidence connected with and surrounding the explosion. The trial court did not err in giving the general charge for the defendant. Since the plaintiff failed to establish his complaint, the defendant was not put to a defense of the action, and the action of the court in overruling demurrers to the plea of contributory negligence, if error, and which: we do not decide, was error without injury. The judgment of the city court is affirmed. Affirmed. McClellan, Sayre, and Evans, JJ., concur.