These charges were given at defendant's ond and third counts charged a violation of request:

(102 So.)

mine where said explosion occurred, in which, statute was violated by plaintiff; it avers he had been notified in person, a few minutes it was negligently violated by plaintiff; and before said explosion, by the fire boss that gas it avers, as a proximate result of this conand as existed in dangerous quantities: a tributory negligence of plaintiff, his injuries proximate result of his negligence in such rewere received. This plea sets up sufficient gard his injuries were received." facts to constitute a good contributory negligence defense to the simple negligence counts in the complaint, and the court did not err in overruling demurrers of plaintiff to it. Authorities supra.

That part of the penal statute set up in this plea is found in section 32, p. 513, Acts 1911, and provides:

"It shall be a misdemeanor for any person to enter in or dangerously near to any place in the mine in which he has been notified in person that gas exists in dangerous quantities."

The decedent, Mike Harris, and Will Hatcher, were "buddies" working for defendant in its mine. Their rooms were known as Nos. 51 and 52 in 8 north heading. There was a gas explosion in these rooms in De

from which he died. A few days, two or

The title of the act containing this provision is stated as follows: "To regulate the mining of coal in Alabama;" and it is evi-cember, 1912; Mike Harris was burned by it, dent it was enacted for the benefit and protection of owners, operators, and employés of coal mines, a class to whom this penal provision necessarily applies, and it was enacted also for the benefit of the owner or operator of the mine, the defendant in this case, who seeks to invoke its violation, as distinguished from the public generally. Reynolds v. Woodward Iron Co., 199 Ala. 231, headnote 2, 74 So. 360.

three, before the explosion, gas was found
in these rooms, and Mike and Will were noti-
fied that gas was there, not to go in them,
it was dangerous, and they were assigned
These
work in another place in the mine.
rooms were free from gas prior to that time.

The evidence is in conflict as to the cause of the accumulation of this gas in these rooms. The different theories indicated by A penal statute may be set up as a defense the testimony, and the responsibility for it, to a simple negligence count, if its violation whether on defendant or decedent, as shown by the plaintiff contributed proximately in by the tendencies of the evidence, we need The evidence of the plaintiff causing the injury complained of; but "the not discuss. statute or ordinance violated, however, must tended to show, on the morning of the exhave been enacted for the benefit of the par-plosion, as decedent and Will Hatcher went ty who seeks to invoke its violation, as distinguished from the public generally, or a class to whom the ordinance necessarily applies." Watts v. Montgomery T. Co., 175 Ala. 102, 106, 57 So. 471.

This penal statute was enacted primarily for the benefit of mine owners or operators and their employés, and the defendant has the right to set its violation up as a defense to the simple negligence counts in this complaint. The violation of a penal statute is negligence per se; but, as a good defense in a contributory negligence plea, it must aver facts showing its violation by plaintiff contributed proximately in causing the injury alleged. Mobile Lt. & R. Co. v. McDonnell, 207 Ala. 161, 92 So. 185; Wilson v. L. & N. R. Co., 146 Ala. 285, 40 So. 941, 8 L. R. A. (N. S.) 987; City Ice & Del. Co. v. Lecari, 210 Ala. 629, 98 So. 901; and authorities

supra.

[1] Each count in the complaint alleges the injury producing death was caused by gas explosion in the mine. This plea alleges facts showing the statute was violated by the plaintiff; it alleges the fire boss, a few minutes before the explosion, notified, in person, the plaintiff that gas existed in dangerous quantities at the place where the explosion occurred, and that plaintiff then negligently entered into or dangerously near this place, and as a proximate result of his negligence in such regard his injuries were received. The plea avers facts showing the

|

to the mouth of the mine, they were notified in person by the fire boss, Mr. Tate, that their rooms, 51 and 52, were free from the gas, and they could return there to work, and as Mike Harris entered his room with a

lighted lamp the gas ignited, there was an explosion, he was burned, and afterwards died from the injury. The evidence for the defendant tended to show, when Mike and Will went to the mouth of the mine that morning, the fire boss, Mr. Tate, informed them in substance that gas in dangerous quantities was in their rooms, 51 and 52, and they must not go there, and Mike replied his tools were there and he was going to get them, and he was told by this fire boss not to do so; and that Mike, against these instructions of this fire boss, went with lighted lamp to these rooms for his tools, or to work; the gas becoming ignited from the lamp, causing the explosion which injured him causing his death.

[2] Will Hatcher testified that he and Mike Harris after the explosion were in the hospital together, and that he had not seen him since the day "I heard he was dead." The court would not then permit witness to answer this question asked by plaintiff: "Have you ever heard of anybody saying he was still alive?" The court will not be placed in error, if any, for failing to permit plaintiff to prove his death by hearsay, because there is positive proof in evidence of his death, and there is no evidence indicating he

is still alive. The death of Mike Harris is, tion, this witness testified he left this place not controverted by the evidence. of work voluntarily once or twice, and got

because they claimed he did not give satisfaction. The following questions were then asked by the plaintiff: "You know their reason-what reason they assign-you were not giving satisfaction? What was the occasion of your discharge by the Alabama Fuel & Iron Company after this accident?" and the court sustained objections of defendant to each of them. These questions called for no facts which would tend to prove or disprove the issue in this case. It appears he was discharged 8 or 10 months after this explosion. We find no error in these rulings of the court.

[3-5] The attorney for defendant, in cross-fired once, 8 or 10 months after this accident, examining a witness of plaintiff, "shook his finger at him." The plaintiff objected to it, and the court overruled the objection. In this we cannot say the court erred, as there is nothing to indicate that the witness was thereby intimidated and prevented from telling the truth. One witness of plaintiff testified he stepped the cross-cut between rooms 51 and 52, and it was about 75 feet. The witness was asked, and answered that, "No, sir; I don't think I did, to be honest, testify that I didn't step that distance," on the former trial. The plaintiff objected, and asked the court to prevent counsel from arguing with witness. The court overruled the objection, and refused the request. The court will not be placed in error by this ruling. The court did not permit the defendant to abuse, thereby, its right to cross-examine this witness in that way. One witness for plaintiff testified he was now fire boss and foreman at Edgewater mine, belonging to the Tennessee Coal & Iron Company. The court did not err in refusing to let this witness state or answer for plaintiff that "that mine has the reputation of being the best kept mine in the state." It was a different mine from the one in question in this cause; its reputation would shed no light on the issues in this case, nor would it add to or detract from the qualifications of the witness as an expert.

[6] J. F. McCurty, witness for plaintiff, testified on direct examination that he worked at Acton mines; he and his son-in-law were there at the time of the explosion; that he was a witness in a case growing out of that explosion, tried at Columbiana. The court sustained objection of defendant to the following question asked him by plaintiff: "Did you testify, not only as an expert, but as to the actual facts in that case?" This would neither tend to show he was qualified to testify as an expert in this case, nor would the answer shed any light on any issue in this case. He had already testified he was there at the time of the explosion, and was a witness in a case growing out of it. The court was correct in this ruling.

[8-10] The court very properly would not permit the plaintiff to show, by this witness, how many children he had at that time, who was his family, or whether he and his family were living in a house together. He testified on cross-examination that he drank whisky at the time of this accident; might have gotten drunk occasionally. "I mean just once in awhile I might have got drunk." The court committed no reversible error, if error at all, in refusing to let plaintiff ask witness the following question: "What do you mean by once in awhile?" He had testified he got drunk occasionally. This witness, on cross-examination, testified he knew of only one kind of gas, and that was explosive gas which was in these rooms that morning, and he did not know it otherwise, and did not know how many kinds of explosive gas there were in this mine their names or the ingredients of them. After the foregoing testimony, the court did not commit reversible error in refusing to allow plaintiff to ask this witness the questions below; but the court could have properly permitted the witness to answer them, if he knew how to do SO. It is evident the witness could not answer these questions:

"Well, you know anything else about it? "What are the physical properties of carbon monoxide?

"What is it composed of?

"That the only kind of combustion you know

of?

"What is methane, Mr. Pitts?

"What is ethane?

"Does methane occur in coal mines?

"Was any ethane in this mine at the time of the accident, Mr. Pitts?

"Mr. Pitts, how do you detect the presence of methane?

"What is naptha?

[7] R. J. Pitts, witness for defendant, testified he was fire boss of defendant at the time of the explosion, and it was his duty to examine the north side of the mine, in which rooms 51 and 52 were located, for gas, which he did; that he found gas therein that morning, and made written report thereof to Mr. Zeigler, the mine foreman. The other fire boss, Mr Tate, had charge of examining, for gas, the south side of the mine. It was Tate's duty that morning to be at the mouth [11] Pitts, the fire boss of defendant, testiof the mine, take the reports of the fire boss, fied he placed two boards at these rooms, 51 and notify the miners of the condition of and 52, with marks on them indicating gas their places in the mine. His written report was therein on the morning before the ex

"Did you ever study one?
"On your examination was
asked you about sight indicators?"

any question

(102 So.) versible error in refusing to let him state, on [ cross-examination by plaintiff, whether he knew of anybody else who saw these boards. He could have answered without injury to any one, if he knew, by stating or giving the name of any person who saw the boards.

[12] The court, over objection of the plaintiff, allowed the defendant to propound this question to its witness Pitts on redirect examination: "When that report was presented to you in the courthouse, did it have your handwriting on it, showing these places marked out?" The witness answered: "Yes, sir." By this question and answer, the defendant was proving the contents of a written report of the condition of rooms 51 and 52 on the morning of the explosion, made by the witness Pitts. This question calls for the contents of the report made by Pitts, but this was not error, because the plaintiff, on crossexamination of this witness, had inquired of these written reports and their contents. The court allowed Mr. Tate, the fire boss, on his direct examination, over objection of plaintiff, to testify that the reports made that morning by him and Mr. Pitts for the north side of the mine, and the book in which the reports were kept, showed that rooms 51 and 52 on the eighth north heading were marked out for gas, and that those reports showed those two rooms marked out for gas at the time he testified first as a witness in this case; and they were signed by the witness and Pitts, and countersigned by the bank boss.

Evidence to the same effect as to the contents of this report was brought out by the plaintiff, on cross-examination of a witness of defendant hereinbefore referred to in this opinion, and the court did not err in allowing the defendant to make this proof, by this witness, of its contents.

[13, 14] This witness Tate testified he did not remember exactly how long he remained and worked at this time after the explosion; could not tell whether it was two years, three years, or four years, just exactly; "have no recollection how long I stayed there; it might have been two months or three months, or something like that." The court, after the foregoing testimony, did not err in sustaining the objection of the defendant to this question by plaintiff: "Been as much as four years?" The witness had already answered the question. This witness, on cross-examination, testified he could not tell whether Mr. Pitts drank whisky or not, and that he knew nothing of Pitts' drinking. Witness said he took a drink some time. The court did not err in sustaining objection to plaintiff's question, "How much did you take?" The witness afterwards testified, to questions of plaintiff, that he did not drink to excess, but has been drunk, and that he was not drunk the day this accident occurred,

[15] There was evidence tending to show this mine was worked by double rooms, a miner in each. As the work progressed it was the duty of the two miners to make, from the dirt and rock, a gob wall, and build it up to the ceiling of the room, and extend it, as the work was continued, in mining the coal. The wall was in place of brattices, and aided in causing the air to extend to the work place of the miner. The air circulated from room to room through crosscuts. There was ample air in these rooms, and they were free from gas until about three days before the explosion. The distance from these crosscuts to the place where the miners were working was relevant, and it varied by the different witnesses. Dyer, witness for defendant, a professional engineer and expert, was properly allowed by the court to testify as to the actual condition of these rooms on the 6th of December, before the explosion on December 20th, as to the gob wall, distance from the crosscut to the place where the miners were then at work, and the amount of coal, and the distance the miners would go in a day in mining the coal. This would shed some light on the condition of the rooms at the time of the explosion as to air, gob wall, and distance from the face of the room to the crosscut.

[16-18] The plaintiff was not permitted on cross-examination to ask this witness the following question: "They-those questions are used by the examining boards of the different states, Alabama included, aren't they?" The questions mentioned are not before us. They do not appear in the record, and we cannot place the court in error, unless the error appears affirmatively in the record. So we must hold in this ruling the court did not err. The court could have very properly allowed plaintiff to ask this witness, on cross-examination, was the gas that came in this mine from the coal, and how much hotter other mines were than this mine, and that in a hot mine it was more important to have an efficient lamp than in a mine that is not hot, as the witness was an expert; but the court will not be placed in error for refusing to allow plaintiff to make these inquiries, as it appears no injury was thereby done the cause of plaintiff. The court did not err in permitting this expert witness to testify for defendant, if a fire boss uses a lamp in a place, and detects by the use of that lamp that there is gas in the place, and so marks the place, the efficiency of the lamp has been demonstrated. There was a tendency of the evidence on which this hypothetical question could be based.

[19-21] Frank Hillman, witness for defendant, was state mine inspector for four years, which was during the time of this explosion. The court did not err in allowing him to testify that he visited and inspected this mine

about every 30 days during 1912, the year | Mike Harris went into that place, and as a reof the explosion; that the ventilation insult of his having gone in there the explosion rooms 51 and 52 in eighth north heading was occurred, and his death resulted, and you are always reasonably good on his inspections, reasonably satisfied that that occurred, then prior to December 20, 1912, and that the mine the plaintiff could not recover, because of the had one fan until he recommended two; then contributory negligence, on account of the de

[25] Written charges 5 and 24, requested by the defendant, which were given by the [23] The court would not permit the plain- court, should have been refused. They fail tiff, on the introduction of her rebuttal testo state that the fire boss notified decedent in timony, to show by witness Charlie Yarbrough whether the gob wall in rooms 51 and 52 was in proper condition at the time of the explosion, if it was cemented, and if there were holes in it. The court will not be placed in error for these rulings, because the testimony of her witnesses, on direct introduction of evidence, tended to show the condition of this wall, and that it was good-properly built.

[26] The burden of proof under the contributory negligence plea is on the defendant to reasonably satisfy the jury that the fire boss,. Tate, notified, in person, the decedent as he entered the mine, on the morning of "If. when these two colored men approached, the explosion, in substance, that "gas exists Mr. Tate told them not to go into that mine or in dangerous quantities" in these rooms, 51 into that work place, and over that instruction, and 52. This was the prime, and almost the