72 So. 161 | Ala. | 1916
Lead Opinion
The evident purpose of this rule is to protect miners from coming in contact with dangerously charged electric conductors in passageways, whether in a slope or shaft, or in any escape way. So the real test in the case at bar must depend on what may be termed the place at which the wire in question was lo
In the case of Geis v. Tenn. Co., supra, the plaintiff, an employee, voluntarily abandoned the way the master had provided when he could have avoided the obstruction by merely going around the cars within the lighted zone.
The case of Walker v. So. R. R., supra, was an action by an employee, and .the complaint charged that plaintiff was engaged in the master’s business at the time he was injured, and the court held that he was not so engaged, and .that there was a fatal variance. Count 10 in the case at bar is by an invitee, and charges that intestate -was killed where he had a right to be, and whether he was or was not properly on the gob side of the entry was a question for the jury upon the idea heretofore advanced in this opinion, and we think that the trial court erred in giving the general charge in favor of the defendant as to count 10. Whether or not there was such material variance between the allegations in count 8, that the intestate was in the discharge of his duties of employment when killed, and the proof, as to justify the general charge as to this count, we need not determine, as this case must be reversed' for other reasons, and the plaintiff can well abandon this said count 8 upon the next trial as he can get the full benefitof same under count 10. The trial court erred in giving the general charge as to count 10. The trial court also erred in giving, for the defendant, charge 15, as it was a question for the jury, for reasons above advanced, as to whether or not the deefndant should have shielded the wire at the point where the intestate was killed. There was also error in giving charge 16 for the defendant, as applicable to count 10.
The judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.
Rehearing
UPON REHEARING.