Reid v. Sloss-Sheffield Steel & Iron Co.

58 So. 301 | Ala. | 1912

ANDERSON, J.

It may be true that plea 18 does not in direct terms charge that the negligence of the plaintiff was the proximate cause of his injury, yet Avhen considered in connection with the complaint it is sufficient. The complaint avers that the injury resulted from the plaintiff’s hand being caught in the disk or side rods, and the plea avers that he negligently placed his hand on said disk or side rod. There Avas no error in overruling the demurrers to this plea.

There Avas no error in overruling the demurrers to pleas 19, 20, and 22, or pleas 25 and 27, as amended.

Plea 21 was subject to the plaintiff’s demurrer. The averment that the plaintiff negligently failed to shut off the steam is a mere conclusion of the pleader. There is nothing in the plea to indicate that there was an appliance at hand for shutting off the steam, or hoAV he could have shut off the steam, at the time he was injured.

There Avas no error in giving charges 1, 9, 12 and 15, requested by the defendant.

The only argument directed by appellant’s counsel against the defendant’s given charges 2, 3, 4, 5, 8, 10, and 11 is that they Avere misleading. If they were merely misleading, they should have been explained by counter charges, and the giving of same Avould not work a. reversal, if only misleading.

Appellant’s counsel does not insist upon error in giving defendant’s charge 7, which is similar to charge 5, held good in the case of Birmingham R. R. Co. v. Bynum, 139 Ala. 389, 36 South. 736, but which said case Avas criticised in the case of Birmingham R. R. Co. v. Fox, 174 Ala. 657, 56 South. 1013, and Avould have doubtless been overruled, if necessary, in said case. It should be refused, if requested, upon the next trial.

Charge 13, given at the defendant’s request, should have been refused. It invades the province of the jury by, in effect, instructing that the plaintiff’s failure to cut off the steam before beginning to clean the engine was negligence, when it was a question for the jury under the circumstances of the case, whether or not said failure Avas negligence.

The judgment of the city court is reversed and the cause is remanded.

Reversed and remanded.

Doavdell, O. J., concurs in the opinion. Simpson and Sayre, JJ., concur in the reversal as to charge 13, but think that plea 21 was not subject to the demurrer. McClellan, Mayfield, and Somerville, JJ., are of the opinion that there was no error upon the rulings as to plea 21, or in giving charge 13, and therefore dissent as to the reversal of the case.