62 So. 66 | Ala. | 1913
The plaintiff is a minor, and sues by next friend, under the Employer’s Liability Act (Code 1907, §§ 3910-3913), to recover damages for personal injuries received and suffered by him, while in the employ of defendant (appellant), in its mine, as a chain boy, in. consequence of the derailment of a tram car on which he was riding. The trial resulted in a verdict and judgment for $800.
It is first insisted by appellant that the sixth count of the complaint was insufficient, as was pointed out by its demurrer.
This count is drawn under the first subdivision of the Employers’ Liability Act, and practically, if not literally, follows. the language of the statute, and concludes 'by describing the particular defect as “a defective condition of the said car that was derailed and injured plaintiff, as aforesaid.”
While it is possible and probable that this defect could have been described with more particularity and certainty, We are not prepared to say that it was not sufficient, under the circumstances alleged in connection with it, such as the age of the plaintiff, his lack of specific knowledge of the particular defect, and the fact that the car was a mere tram car used in the mine.—
The case is readily distinguishable from that of Tennessee Coal, Iron & Railroad Co. v. Smith, 170 Ala. 251, 55 South. 170. There the only defect attempted to be alleged was “the condition of the mine entry.” The count in that case afforded very little, if any, information as to any particular defect; the defendant was not informed of what it was to defend against. There were shown to exist in that case several entries, and as an entry is a mere opening or way into the mine it was impracticable, if not impossible, to learn what defect, if any, the count referred to.
Here the defect alleged was' as to a tram car, which caused it to be derailed. On account of the plaintiff’s age and of the nature of - his employment, he probably had no means of knowing how to describe the defect any more certainly than he did; and we see no reason why the defendant could not show that the condition of the car was not defective, if such was the fact. In Smith’s Oase there was nothing to show or indicate how a defective opening in a coal mine would tend to derail a tram car; but here it is very evident that a defect in a tram car would tend to cause its derailment. There are many other respects in which the two cases may be distinguished.
The seventh count of the complaint was not subject to any ground of demurrer interposed. It was like the sixth count, except that it alleged that the “cable or rope which pulled the car was so defectively constructed that it pulled the car sideways off the track.” We see no reason why this count was not sufficient. We may here say that the objection or contention that this merely refers to the warp or woof of the rope, or to the manner in which it was woven or manufactured, is not
There was shown, or attempted to be shown, a rule prohibiting employees from riding out of the mine on the tram cars, as plaintiff was doing when injured; and there was a like attempt to show a waiver of this rule by the master. It was therefore competent, on this issue, to shoAV that the rule Avas violated repeatedly Avith the knoAvledge and Avitliout objection from the master.
It Avas competent for the plaintiff to prove that the master had knoAvledge or notice of the defective condition of the plant; and for this reason there was no error in allowing plaintiff to prove by Garris that he had called the bank boss’ attention to the-defective condition of the tram track.
The question propounded to the same witness, Garris, to prove the condition of the rope or cable Avere likewise proper. The seventh count of the complaint could not be proven, except in the mode and manner here attempted.
We see no error whatever in any of the rulings of the trial court upon the admission or rejection of testimony.
There was no reversible error as to any part of the oral charge to Avhich exceptions were reserved. Construed in connection with the other parts of the oral charge, as we must construe each, it involves no error or injury of which appellant can complain. Some of
There was evidence sufficient to carry the case to the jury as to each count of the complaint upon which the trial was had; and consequently the affirmative charge should not have been given as to any such counts. It is therefore unnecessary to treat each count separately. The plaintiff’s right to recover, and the amount of his damages, were clearly questions for the jury on the issues raised by the pleadings and upon the evidence introduced; and we find no error, and see no reason why the judgment of the trial court should not be affirmed.
Affirmed.
