Alabama Mineral Railroad v. Marcus

128 Ala. 355 | Ala. | 1900

DOWDELL, J.

The authority to sign bills of exceptions is regulated-and governed by the statute. — Code 1896$ iHj.616, 617, 618 and 619. Where an order is made in-term Time fixing a time in vacation for signing a bill of exceptions, such time may be extended by order or orders of the presiding judge in writing, provided the time allowed must not be extended beyond six months from-the adjournment of the court. Subsequent orders of-extension must be made within the time fixed in the next preceding order. — Morris v. Brannen, 103 Ala. 602; Beal v. State, 99 Ala. 234; Rosson v. State, 92 Ala. 76; Ladd v. State, 92 Ala. 58; Bass Furnace Co. v. Glasscock, 86 Ala. 244. Unless the bill of exceptions is signed in conformity with the requirements of the statute, it forms no part of the record, and cannot be looked to by the court for any purpose. See authorities cited supra.

In. the present case an order was made in term time for .the signing of the bill in vacation. The bill of exceptions was signed by the presiding judge on the 28th. day of January, 1858. On the 24th day of November, 1897, and Avithin the time fixed by the. preceding .order, the presiding judge further extended the time by an order in writing to January 1st, 1898. After the expiration of this period, and on the 14th day of January, 1898,'the. judge made another order in aatíD ing extending the time to and including the 1st day of February, 1898. It Avas Avithin the period fixed by this last order, on to-Avit, January 28th, that the bill was signed. This last order of extension having been made, not Avithin the time allowed by the next preceding order but after the expiration -of that time, Avas Avithout authority under the statute, and consequently conferred no right on the judge to sign the bill of exceptions wi-tliin the time fixed by said last order. The presiding judge has no more poAver or authority in vacation to make an older extending the time after the expiration of the time allowed in the next preceding order than he would have to sign a bill after the expiration of the time fixed by such order. The present-bill of exceptions having been signed in vacation, and without an order in conformity with the statute, cannot be considered, 'and the assignments of error based on the bill must likewise be disregarded.

The -only matters -complained of as error presented by the record proper outside of the bill of exceptions are the rulings of the -court in overruling defendant’s demurrers to the third, fifth, seventh, eighth, ninth and tenth counts of the complaint.' Each one of-these counts, aver that the plaintiff was an employé of the defendant, and that he received the injury of which he now complains while in the -discharge of his duty under -said employment. In the third and fifth counts it is charged and averred that the injury resulted from the negligence of defendant’s section foreman or boss— one Holme-s — who had the 'superintendence and -control of the hand or lever -car, from which plaintiff fell or was thrown, and by which he was run over, that said car was being negligently run by the order or permission of said Holmes, who was at the time on -said car, at. a great, dangerous and reckless rate of speed, and that the injury to the'plaintiff was the. result of said acts of negligence on the part of said Holmes. These averments set forth a substantial cause of action under the statute known as the employer’s liability act. — Code, 1896, § 1719.

The. 7th, 8th, 9th and 10th counts have been added to the complaint since the cause was here on a former appeal (Ala. Min. R. R. Co. v. Mareus, 115 Ala. 389), and manifestly for the purpose of meeting what was then said by this court upon the question of the plaintiff’s minority. Each -of these counts avers the plaintiff’s minority at -the time of the employment and of the injury sustained, and that he was immature and undeveloped mentally and physically, and was -without any experience in working on a railroad, or in running or propelling a hand-car, and that these facts were well known to said Holmes, the section foreman or boss, who had the superintendence and control of the work in which plaintiff was employed, and of the-running of the hand or lever car on which plaintiff was 'riding at the time of his injury, and while in the regular performnee of Iris, plaintiff’s, service under said employment. It is, also, averred in the 7th count, that the. work in which plaintiff was engaged under said employment was a dangerous one, and one in which lie had no experience, and that the defendant negligently failed during the time of said employment, or at any time, by itself, its said foreman or any one, to give plaintiff any 'warning as to the dangers attendant upon the -operating said hand car, or explanation or instruction as to the safest way of riding upon and propelling the same. That on September 9th,' 1892, while plaintiff was engaged in the regular course of his employment, riding upon and assisting to propel one of said cars, by reason -of defendant b said negligence, plaintiff fell from said car in front of and was run over by said hand car, thereby being injured, etc. Under these averments of the plaintiff’s minority, inexperience, physical and mental immaturity, all of which being' known to defendant’s superintendent or section foreman, it was clearly the duty of the defendant to have warned the plaintiff of the perils of the employment, ‘and to have instructed him as to the safest mode of riding upon and propelling said car, while in the performance of his duties, and the negligent failure to do so resulting in injury to the plaintiff, furnished a just cause of action. The acts constituting the negligence as averred in the 8th, 9th -and 10th counts on account of Avhich it is alleged the injury to the plaintiff resulted are sufficient as to certainty and definiteness. We think the court committed no error in overruling the demurrers.

We find no error in the record, and the judgment of the circuit court must be affirmed.

Affirmed.