| Ala. | Jan 22, 1914
Action by servant (appellee) against the master (appellant) for personal injuries received by the former while performing his duties in that service. The trial was had on the issues made by amended count 1 and plea of the general issue and seven special pleas asserting assumption of risk and contributory negligence. The evidence has been carefully considered, and, according with that twice invoked and pronounced by the trial judge in his ruling declining to give affirmative charges for defendant, and in overruling the motion for new trial, our conclusion is that the material issues raised by the pleadings were, under the conflicting tendencies of the evidence, for the jury to decide. An argument upon, and detail recital of, the evidence would be without profit or benefit. Indeed, outside of an earnest insistence that special plea 4 was
We will now take account of the other particular errors assigned and urged in brief for appellant.
Complaint is made against tbe sufficiency of amended count 1. Apart from formal features usual to counts drawn under tbe first subdivision of tbe Liability Act (Code, § 3910), and tbe description of tbe injury suffered, and tbe bases for tbe damages claimed, this count is as follows:
“Plaintiff claims of tbe defendant corporation ten thousand dollars damages for that on or about March 2, 1912, tbe defendant was engaged in operating a coal mine at Marvel, in Bibb county, Alabama, and in connection with tbe operation of tbe said mine used tram cars for hauling from tbe rooms in said mine to the entries thereof; and plaintiff alleges that in connection therewith it used a wire rope which was fastened to two of said cars in one of tbe rooms in said mine; and plaintiff alleges that on said day be was in tbe service or employment of tbe defendant, and while acting in. tbe line and within tbe scope of bis said employment, and while plaintiff was engaged in or about tbe business of defendant in handling tbe wire rope which was attached to said cars, a broken wire on said rope was causeR to be driven into bis band, and, while plaintiff’s band was pierced by said broken wire, said rope moved, and be was dragged or pulled from tbe place where be was, when said broken Avire pierced bis band five or six feet,*203 until his hand was caught in a pulley or sheave wheel, and, by reason and as a proximate consequence thereof, plaintiff’s fingers were so crushed. * * * And plaintiff alleges that he was injured and damaged as-aforesaid by reason and as a proximate cause of a defect of the ways, works, machinery, or plant of the defendant * * * viz.: Said wire rope as aforesaid was defective.”
The loire rope mentioned in the count was a part of the “plant” of defendant.—Sloss, etc., Co. v. Mobley, 139 Ala. 437, 36 South. 181; Huyck v. McNerney, 163 Ala. 244, 50 South. 926. That the count describes, as it avows, a defect in the condition of the wire rope is manifest. We do not understand that there is no defect in condition, within the first subdivision of the Liability Act, unless the agency or thing or instrumentality is so unfit as to prevent its use for the purpose it was, when new or perfect, designed. We can see no possible sound objection to amended count-1.
It is earnestly and elaborately insisted in brief that special plea 4 was proven without dispute. That plea (4) is, in its substance, as follows:
“Plaintiff assumed the risk of his alleged injury in this: That he had used said wire rope for haulage in his working place, for, to wit, two months at the time of his alleged injury, and during that time the condition of the said rope remained practically the same, without any material change, that it was on the day of his injury, and had stickers on it such as plaintiff complains of all during that time, which were open and obvious and plain to be seen by plaintiff, and were seen by him, and that plaintiff knew and fully appreciated whatever dangers there were in taking hold of said rope in its said condition, and the danger of getting his hand caught in said pulley was plain and open to plaintiff,*204 and lie knew and fully appreciated the dangers thereof, and nevertheless plamtiff negligently stood near said pulley took hold of said rope, and he thereby proxvmately caused' the alleged injury ”
This contention cannot be approved because of the phase of the evidence which tended to show an absence of danger in taking hold of the toire rope, with stickers on it, six feet from the pulleys; and, furthermore, under the evidence it Avas distinctly a jury question AAdiether it was negligent in the plaintiff, as averred in the concluding clause of the plea, to stand and take hold of the wire rope, at the distance from the pulley some of the evidence tended to show plaintiff was when he did take hold of the wire rope, with knowledge .of its condition in respect of broken wires. The affirmative charge could not have been correctely given on the theory 'that this plea was conclusively proven.
On the examination of the plaintiff as a witness in his own behalf, this question was .propounded to him, by his counsel:
“Did you make any complaint about that rope to the bank boss after they put it in?”
The defendant’s objection, in substance, was that the matter sought by the question was without the issues ma.de by the pleading; there being no replication as serting a promise to repair. The question was not objectionable on that account. By its plea 8, the defendant averred the negligent failure of plaintiff to inform the defendant or plaintiff’s superior in defendant’s service of the defective condition of the wire rope.
No error appearing, the judgment is affirmed.
Affirmed.