40 So. 114 | Ala. | 1905
The complaint in this case avers that the engine was defective, thus particularizing what part of the ways, work, machinery, or plant was defective, and need not have specified what particular part of the engine was defective. The demurrer was properly overruled. — Mary Lee Coal & Ry. Co. v. Chambliss, 97 Ala. 171, 11 South. 897; Bear Creek Mill Co. v. Parker,
The second assignment of error is. as follows: “The court erred in overruling defendant’s objection to the following question, ‘Would an engine speed up that way unless that defect existed?’ ” The record shows that the defendant, objected to this question, but assigned no-ground, and does not show that defendant excepted to the ruling of the court. After the answer the defendant moved to exclude same, and excepted to the ruling of the court in refusing to- exclude, but the action of the court upon the motion to exclude is not complained of in the assignment of error. There was no error in permitting the defendant to testify that- he had to oil those parts? where he was oiling. It was not a mere conclusion of the witness, but was- a narrative of a part of his duties, and as he had charge of the engine he was certainly competent to testify and give his opinion as to- whether or not certain parts of the engine needed oiling. If there was any evidence -tending to support the material averment of the complaint, then, unless the- evidence conclusively and as a matter of law supported the special pleas, the general affirmative charge for the defendant should not have been given. — Southern R. R. Co. v. Shelton, 136 Ala. 191, 34 South. 194, and cases there cited. In the case at bar the plaintiff testified: “While I was running the engine something got the matter with it; the governor hung up, and caused it to speed up, and when they would stop it would cause the engine to speed up quickly, and if the air was low it would run away. * * * I reported that difficulty to the master mechanic, and he told me he would have it fixed.” The plaintiff also testified that “‘an engine would not suddenly speed up that way unless that- defect existed. There was something in thu
Charge 2 was properly refused. It was misleading in view of the fact that it left out of consideration the tendency of the evidence as to defects in the governor.
Appellant does not insist on a consideration of charge 8.
Charge 4 was argumentative. It also tells the. jury they may apply their “observation and experience in life.” Jurors can apply their common observation and experience, or an experience only common to ordinary men.
Charge 6 was properly refused. The defendant’s plea of contributory negligence charges the plaintiff with negligently exposing his hand to the danger of being caught, and seeks to hold him responsible for the position he occupied. He may have occupied a negligent position, and still not have negligently exposed his "hand.
A majority of my brothers think that charge 7 should have been given, and that its refusal is reversible error. They think that, although the plea confines the plaintiff’^
The judgment of the city court is reversed and the. cause is remanded.
Eeversed and remanded.