126 Ala. 253 | Ala. | 1899
There are but two assignments of error on the record. The first is based upon the sustaining by the court of a demurrer to the original counts of the complaint. The record discloses that this demurrer was confessed by the plaintiff. I-Ie cannot now, of course, have the action of the court in respect to it reviewed.
The other assignment is based upon the action of the court in giving, at the request of the defendant, the general affirmative charge.
There are two contentious insisted upon in argument and we quote them: “1. The evidence adduced by the appellant tends to show that the injury was caused by reason of the defects in the condition of the machinery, or plant connected with and used by'appellee in conducting its business. 2. The evidence tends to show that the injury to appellant was caused by reason of the negligence of a person in the service or employment of the master or employer, who had the supervision or superintendence in keeping in repair the punch machine that injured appellant.”
It is manifest from this statement that the plaintiff predicates his right of recovery upon an injury received on account of an alleged or supposed defect in a punch machine. But the master or employer is not liable for such injury if the plaintiff, whom the evidence shows was an employe to use the machine, knew of tlie defect and failed in a reasonable time to give information thereof to the master or employer, or to. some person superior to himseif engaged in the service or employment of the master or employer, unless he was aware that the master or employer or-such superior already knew of such defect; nor-is the master or employer liable unless the 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 machine was in proper condition.— Code,' § 1749.
The evidence of the plaintiff himself shows that he-had been working in the wagon works of the defendant-
Without quoting further from the evidence, we will state that it shows that this machine was being used for the purpose of punching holes through sheet iron. Other witnesses were, examined by the. plaintiff, but .their testimony sheds no light upon the question as to whether the plaintiff knew of the defect and failed to give,.the information to. his superior,, or that, the defect had hot- been remedied owing to the pegligenee of the
There is no error in the record, and the judgment is affirmed.