137 Ala. 414 | Ala. | 1902
It, may be said as to sustaining the demurrers to pleas 2, 3, and 8, that if -any of the grounds were properly sustained, the assignment of error cannot he allowed, for the reason that, it. is. not, based upon these rulings severally, hut upon them as a whole. Sustaining the demurrer to the Sth plea was good, and, therefore, the ruling sustaining the demurrers to, the three pleas was without error. — Goodwin v. Whitehead, 95 Ala. 409; Kennon v. W. G. T. Co., 92 Ala. 399; Coleman v. Pike County, 83 Ala. 326.
The case was tried upon the several counts in the complaint, with general issue thereon, on pleas 6. 10, 11, 12, and 13, and on plaintiff’s replication to pleas 4 and 5.
The first count in the complaint fails to state any cause of action, in that the negligence averred is attributed to one of the section hands, a fellow servant, not acting in the capacity of superintendence.
The defect in the brace or beam as alleged in the 3d count, for the purposes for which it. was intended, did not exist, and the. brace for such purposes was not shown to have been defective at. all, so .that it may be said the averments of negligence in this count were not proved.
The only evidence relied on to support the 2d count is, that Golden, the foreman, negligently ordered brakes applied without notifying the plaintiff, or the crew that he was going to give the order. The ear, according to plaintiff’s testimony, was within about 30 yards of its destination, the tool house, and after they had gotten within 5ft or 60 yards of that house, they had speed enough to run there with1 the momentum of the car, and the propelling lever was let loose in order for the car to have its own speed to the house. When about 30 yards from the house one Lucius Gibson applied the brake suddenly and plaintiff was thrown off the car. It- was not shown that Golden’s directions for brakes was to apply them in any particular manner, nor that there was a,ny negligence in giving the order. The evidence. therefore, fails to support counts . of the complaint, and the general charge should, as requested, have been given for defendant.
Reversed and remanded.