— 1. The first count of the complaint alleges that the injury to the plaintiff was caused by reason of defects in the condition of the locomotive engine, upon which he was serving as fireman; and the defect mentioned was that the throttle-valve leaked and allowed the' steam to pass' through into the cylinders of the engine, and caused the engine to move off without warning to the plaintiff, while he was under the same, oiling and wiping it off.- The-original first count alleged, “that said defects were known to the superior ■ officers of plaintiff, and known to the defendant.” The manifest purpose of this count is to show such a state of facts as to render the defendant liable under sub-division 1 of section 2590 of the Code of 3886; the inju'ry being attributed to a defect in machinery ■ and to no other cause. The demurrer ■raised the question of the sufficiency of the averments to-charge the defendant with liability under that clause of the statute. The statute does not impose a liability upon the employer for an injury to an employé caused by reason of a defect in machinery connected with or used in the business of the employer or master, unless such defect “arose from or had not been discovered or remedied owing to the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition.” The description of the defect to which the injury is imputed must come within the specific limitations of the proviso just quoted. Liability is hot imposed, unless the defect has one or more of the features there particularly mentioned. A statement of a defect which does not come within the qualifying language of the proviso falls short of what is necessary to be shown. The allegations must state a case so as to bring it within the description of one of the particular phases of negligence for which a liability is imposed upon the employer by the terms of the statute. When the. claim is made under the first sub-division of the section, it is incumbent upon the plaintiff to show by his complaint, and by his proof, that the injury resulted from a .defect which either arose from, or had not been discovered, or had not been remedied, owing to such negligence as is specified by the statute. Columbus & Western Railway Co. v. Bradford, 86 Ala. 574; L. & N. R. R. Co. v. Davis, 8 So. Rep. 552.
*147It is plain that the first count of the complaint in this case ■does not allege that the specified defect arose from the negligence of the defendant, or of any employé intrusted with a duty in that regard. There is no averment as to how the defect arose. Nor can it be claimed that this count shows that the injury was caused by the negligent failure to discover the defect; for the averment that the defect was known to the superior officers of plaintiff, and to the defendant, shows that it had been discovered prior to the injury. The inquiry, then, is narrowed to this question: does the complaint show that the defect had not been remedied owing to the negligence of the defendant, or óf some person in its service who was intrusted with the duty of seeing that the engine was in proper condition Í- There is no specific averment of any negligence. No more is shown than that the defect was known. The averment of the complaint in this regard would have been supported by proof that the defect in question was known to plaintiff’s superior officers, and to the defendant, for any length óf time prior to the injury, though such knowledge had been acquired so recently that it was impossible that it could have been availed of for the purpose of remedying the defect before the injury befell the plaintiff. Unless there had been a reasonable opportunity to effect a remedy, it could not be said that the iailure to do so was negligent. The defendant must have had sufficient time to remedy the defect after its discovery, before it could be chargeable with negligence in failing to effect such remedy. Mere knowledge, without the opportuniy to act on it, would not constitute negligence.— Wilson v. L. & N. R. R. Co., 85 Ala. 273; Mobile & Birmingham Bailway Co. v. Holborn, 84 Ala. 133. The insufficiency of the first count •of the complaint is disclosed by the application of the test which is afforded by ascertaining what proof would suffice to support its averments. The proof required for- this purpose does not necessarily involve any showing that the defect arose from or had not been discovered or remedied owing to the negligence of the defendant, or of some person in its service, and 'intrusted' by it with the duty of seeing that the engine was in proper condition. The demurrer was addressed to the insufficiency of the allegation of negligence, and should have been sustained.
2. The defendant did not, by pleading ever, waive the privilege of assigning the error in the judgment overruling his demurrer. — Code of 1886, § 2692. The count, as amended by the insertion of the alternative averment that the defect could have been known to the defendant, was capable of being supported by the same proof which .would have sufficed for the *148original count; so that the defect in the pleading was not cured by the amendment.
3. The second count of the complaint is drawn under the-second sub-division of section 2590 of the Code. It alleges, in substance, that the plaintiff, while engaged as a fireman, was injured by reason of the negligence of the foreman of the defendant who was intrusted by it with the exercise of superintendence over the plaintiff, and over defendant’s railroad and its engines and cars; that said negligence consisted in said foreman knowingly allowing a certain engine to be and remain in a defective condition, and that by reason of such defective condition of the engine the plaintiff was injured while in the performance of his duty as a fireman. The particular defect is described as in the first count. Here, there is an explicit averment of the negligence of a person intrusted with a superintendence by the employer; it is shown that he was guilty of such negligence whilst in .the exercise of such superintendence, and that the injury was caused by reason of the omission of duty which was described as negligent. These averments, brought the charge within the terms of the statute, and were sufficiency explicit.— Western Railway Co. v. Lazarus, 88 Ala. 453; Hall v. Posey, 79 Ala. 84; L. & N. R. R. v. Coulton, 86 Ala. 129; Ga. Pac. R. R. Co. v. Propst, 85 Ala. 203. There was no error in overruling the demurrer to the second count.
4. Error is imputed to the charge given by the court at the request of the plaintiff, oh the ground that it assumed the existence of the disputed fact as to Dumont being the defendant’s foreman, and as to the engine.being, out of order as shown in the complaint. We are not satisfied'that the charge is fairly susceptible of this construction. When disputed facts are enumerated in a charge, they should be stated hypothetically, so that the jury may clearly understand that it is for them to determine from the evidence whether or not such facts are established. We are not prepared to say that this rule was not conformed to in the framing of the charge in question. It is the safe course, however, to avoid the possibility of the jury understanding from any instruction given them by the court that any disputed fact is assumed to be established. The possibility of any such misunderstanding may be removed on another trial by re-framing the charge, so that the facts hypothetically stated may be more clearly and distinctly left to the determination of the jury from the evidence.
