Opinion
8 Div. 98.
November 21, 1918.
Appeal from Circuit Court, Franklin County; J. J. Curtis, Judge.
Tillman, Bradley Morrow and T. A. McFarland, all of Birmingham, and Travis Williams, of Russellville, for appellant.
A. H. Carmichael, of Tuscombia, and Henry D. Jones, of Russellville, for appellee.
Counsel for appellant argue with much confidence that the judgment should be reversed for the refusal of charge 32, limiting the amount of recovery for decreased earning capacity to nominal damages, upon the theory there was no data furnished by the proof to support such recovery, citing Ala. Fuel Iron Co. v. Ward, 194 Ala. 242, 69 So. 621; B., R. L. P. Co. v. Colbert, 190 Ala. 229, 67 So. 513; U.S. Cast Iron Pipe Foundry Co. v. Eastham, 237 Fed. 185, 150 C.C.A. 331 — among other authorities.
While it is true the evidence furnishes no data whatever upon which to rest a recovery for decreased earning capacity, yet an examination of count 5 of the complaint — upon which the cause was tried — discloses that the plaintiff made no claim for the recovery of such damages. In B., R. L. P. Co. v. Colbert, supra, it was held that such damages to be recoverable must be specially claimed in the complaint. Under these circumstances, therefore, the authorities relied upon by counsel for appellant are without application, and the charge was properly refused as abstract.
Irvin, the superintendent, was not a party to the suit, and the refusal of charge 30, above set out, may be justified upon the theory that the same was argumentative.
We are of the opinion that the court properly permitted the plaintiff's witnesses to testify as to the danger of the use of a steel drill coming in contact with rock or ore.
Witness Creighton, for the defendant, after having sufficiently qualified as to his experience with powder in drilling holes through earth and rock, was asked to give his opinion as to whether or not the method of unchoking the hole with the use of a steel drill was safe or unsafe; and to this question plaintiff interposed a general objection, which was sustained by the court. In this there was error. The witness had had many years of experience in this work, and it cannot be questioned that he was fully qualified to express an opinion as an expert thereon. The witnesses for the plaintiff had been permitted to testify as to the danger in the use of such steel drills, and we think it clear that this witness should have been allowed to testify that, in his opinion, this method was safe. This ruling concerned a matter of evidence which was of vital importance in the trial of the cause and affected substantially the rights of the parties. We are of the opinion that the court committed error in sustaining the objection.
We consider it unnecessary to pass upon the sufficiency of refused charge 18 for the reason that, whether or not this charge was free from objection, the substance of the same is embraced in given charges 23 and 29. There was no reversible error, therefore, in its refusal.
The evidence for the defendant tended to show that it was the custom among well-regulated ore mines, operated as was the defendant's plant, to unchoke the hole with a drill, as was used in the instant case, after a failure to unchoke the same with a pole; and that in the many years of experience of the witnesses for the defendant they had never known the powder to explode. Defendant's evidence further tended to show that this was a most unusual accident, and one not reasonably to be anticipated.
While the evidence for the plaintiff was to the contrary, and therefore this was a question for the jury's determination, yet the defendant was entitled, with proper hypothesis, to have the jury charged upon the theory of this defense, and to that effect requested charge 19, which was refused by the court, and which appears in the statement of the case.
If it was an accident of such an unusual character as not to be reasonably anticipated on the part of the defendant in the exercise of ordinary care, then, as stated in said charge, the plaintiff would not be entitled to recover, as actionable negligence would not be shown. Wheeler v. Standard Steel Co., 196 Ala. 634, 72 So. 254; Tobler v. Pioneer Min. Mfg. Co., 166 Ala. 482, 52 So. 86.
We do not find the principle asserted in this charge was embraced in substance in any of the charges given at the request of the defendant, or in the oral charge of the court, and we are of the opinion that its refusal was error. For the errors indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.