50 So. 159 | Ala. | 1909
This action, by the appellee against the appellant, is for damages on account of a personal injury received by the plaintiff while in the employment of the defendant.
The first insistence of the appellant is that the court erred (as set out in the third, fourth, and fifth assignments of error), in sustaining plaintiff’s demurrers to the second, third, fourth, and fifth pleas. The first and .second counts of the complaint were eliminated by
Pleas 2, 3, and 4, were subject to the demurrer, because they failed to allege that there was any safer way in which the plaintiff could discharge his duty.— M. & C. R. R. Co. v. Graham, 94 Ala. 545, 553, 10 South. 283.
Plea 5 was subject to the demurrer, because it did not allege or show that the plaintiff was aware of the danger of the position occupied by him. — Ala. G. S. R. R. Co. v. Brooks’ Adm’x, 135 Ala. 401, 406, 33 South. 181; K. C. M. & B. R. R. v. Burton, 97 Ala. 241, 255, 12 South. 88; L. & N. R. R. v. Orr, 91 Ala. 548, 554, 8 South. 360.
If there was error in sustaining the objection to the question to the witness Chillison, “You thought it was all right?” it was without injury. The question called merely for the repetition of what the witness had just said, to wit, “I didn’t know there was any danger in it.”
There was no error in sustaining the objections to the questions to the witness Ohillison, on cross-examination, “Knew all about the business, didn’t hq.?”'And “F'e was pretty familial’ with everything around there, was he
There was no error in allowing the question to the witness Yeitch, as to whether a hook like that can get out of fix at one time, etc.
There was no error in sustaining the objection to the question to the same witness, on cross-examination: “Do you mean to tell that jury that you would trust the whole business of seeing that the chain and hook, by which this work ivas done, was in proper condition, and you would turn your back on it, and never pay any more attention to it, from that time on?” It was not shown that the witness prescribed the duties of the “shakeouts,” and it was irrelevant what he would do. Besides, the witness practically answered the question, in so far as it was not abstract, by saying it that it was his duty “to leave the matter of looking after the chains and hooks, and its being in repair, entirely to the ‘shakeout.’ ” Also, he subsequently answered the question further.
From the evidence the court could not say, as a matter of law, whether the hook was in a defective condition before the accident, or whether it was defective by reason of the negligence of some one intrusted with seeing that it was in proper condition. It was a question for the jury to determine as to what caused the core bar to fall, and as to whether the hook slipped because it had previously “spread,” or whether it spread at the time of the accident.
Consequently the court erred in giving the general charge in favor of the plaintiff.
Reversed and remanded.