64 So. 334 | Ala. | 1914
— On a former appeal (Reid v. Sloss-Sheffield, etc., Co., 177 Ala. 262, 58 South. 301) it was held that defendant’s plea 25 was not subject to-the demurrer. The trial court seems to have overlooked this "ruling, and erroneously sustained the demurrer to this plea, Avliich is not sufficiently covered by any other plea to avoid the imputation of prejudice by reason of its improper elimination.
Pleas 24, 26, and 28 are subject to the sixth ground of demurrer in that they predicate plaintiff’s negligence upon his failure to open the cylinder cocks, without averring that the resulting diminution of steam pressure would have so retarded the starting of the engine as to have avoided the injury to plaintiff’s hand. The averments of-these pleas do not bring them within the ruling in A. & B. A. L. Ry. v. Alexander, 161 Ala. 382, 49 South. 792, where it appeared that using the reverse lever would have diminished the amount of steam passing through the leaky throttle valve into the cylinders by one-half, so that the accumulation of sufficient steam to move the engine, while plaintiff was working under it, would have required twice as much time, and so probably have conserved his safety.
The case went to the jury upon pleas 18 and 20, among others, and the essential issue presented by these pleas was the necessity vel non of plaintiff’s placing his hand upon or dangerously near the side rod or disk of the engine while discharging the duties of his service.
The evidence showed that while cleaning the engine, wiping off its parts with his right hand, during a brief intermission in its actual operation, plaintiff inadvertently rested his left hand on the crank between the side rod and the disk, so that when the engine moved it was caught between those parts.
On the issue stated, it was unquestionably proper for defendant to show the absence of any necessity for the presence of plaintiff’s hand at a place of known danger; and, as tending to show such absence of necessity, it was clearly competent to show that the duty of wiping .off the engine could have been done at times when no
The evidence shoAvs Avithout dispute that the friction appliance and brake attached to the drum, and controlled by a lever AAdiich Avas convenient for instantaneous use by the plaintiff while operating the engine, Avould, if applied by him Avith the throttel valve closed, have absolutely prevented the spontaneous action of the engine; and that this could have been done instantly Avithout any appreciable loss of time.
Under all the evidence, Ave think it was clearly the duty of plaintiff to resort to this simple and convenient means of avoiding- danger, and that his failure to
It results that the trial court should have given the general affirmative charge for defendant, as requested. For the errors pointed out, the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.