268 F. 300 | 5th Cir. | 1920
Defendant in error, W. J. Massey, brought an action in the United States District Court for the Western Division of the Northern District of Alabama against the plaintiff in error, Central Iron & Coal Company, to recover damages for the breaking of his leg; said injuries alleged to have been caused by a defect in condition of the ways, works, machinery, or plant connected with or used in the business of the said defendant.
The evidence showed that the defendant was engaged in mining coal; said coal was hauled from the mouth of the mine in small cars, which were then pushed on a descending track and ran upon a tipple, where they dumped, discharging their contents into railroad cars on a track below the tipple. In order to empty said coal, it was necessary that a door at the end of the small car, which was restrained by a latch, held in place by a catch called a “monkey,” should be released; that to do this it was necessary to raise this monkey, which, if in good condition, would stay raised, but when loose would fall back) and had to be held up by wrapping around it a chain, which was attached to the forward part of the car; that the plaintiff was employed as a dumper.
The evidence indicated.that the condition of the track and of the cars was known to the superintendent of defendant, in charge of the works, ways, and machinery; that it was not the duty of plaintiff to repair the same.
Defendant filed a plea in abatement, alleging the pendency of a former action brought by the plaintiff against the defendant in the circuit court of Tuscaloosa county, Ala., to recover for the same cause of action here set up. Said plea being overruled, defendant pleaded to the merits.
3. In view of the testimony in the case that the man bringing the
“Provided, that in no event shall it be contributory negligence, or an assumption of the risk on the part of a servant to remain in the employment of the master or employer after knowledge of the defect or negligence causing the injury, unless he be a servant whose duty it is to remedy the defect, or who committed the negligent act causing the injury complained of.” Code of Alabama 1907, § 8910.
There was evidence in this case of the existence of the defect in the defendant’s track and that the car was derailed by reason thereof. There was also evidence of a defect in the monkey; also that the master was aware of the defects and that the party injured was not a servant whose duty it was to remedy the same, or who was responsible for the condition of said track, or said cars. There was also evidence that the plaintiff was injured by reason of these defects and was engaged in one of the usual and recognized methods of conducting the business for which he was employed. The court therefore properly refused the affirmative charge. Coosa P. & F. Co. v. Poindexter, 182 Ala. 656, 62 South. 104.
6. Error is assigned because the court refused to charge the jury on requests of the defendant that if the plaintiff, because of negli
Where the court has fully covered the matter in his general charge, it is not error to decline giving a request on the same subject. Texas & Pacific Ry. v. Watson, 190 U. S. 287, 293, 23 Sup. Ct. 681, 47 L. Ed. 1057; Beaver Hill Coal Co. v. Lassilla, 176 Fed. 725, 100 C. C. A. 283; Norfolk & Portsmouth Traction Co. v. Rephan, 188 Fed. 276, 110 C. C. A. 254; Further, the request made is subject to the criticism that it did not submit to the jury whether the acts of the plaintiff, hypothetically stated therein, were, or were not, negligently done.
We therefore find no error in the several rulings of the court, and the judgment of the District Court is affirmed.