69 So. 877 | Ala. | 1915
This case was submitted and considered under new rule 46, and the opinion of the court was delivered by Mr. Chief Justice Anderson.
This case went to the jury under counts 3, 4, and A of the complaint. Count 3- is framed under the second subdivision of the Employers’ Act, section 3910 of the Code; anl count 4 under subdivision 3 as for negligently ordering the plaintiff by one Langley, a superintendent, to go to room 13, wherein he encountered explosive gas and sustained his injuries.
The plaintiff testified: “How come me to' go to room 13 ? The bank boss told me to go up there. The bank boss was Mr. Langley. I went to this room 13 as soon as he told me to go up there. I met Mr. Langley, and he asked me where I was going, and I told him I was going to look at room 13 that he had given me to work in, and he told me to go ahead and look at it. I went right up there to this room.”
We think that the evidence was sufficient to- create an inference for the jury that Langley caused the plaintiff to go to room 13, as charged in count 3, and that he ordered him to do so as averred in count 4.
The trial court did not err in refusing the defendant’s requested general charge as to' either of these counts. It may be that the plaintiff started up to inspect this room of his own volition, but, before getting up there, he had a conversation with Langley; and it was open for the jury to find, not only that Langley ordered him to proceed, but that it was the duty of the plaintiff to conform to said order. — Republic Co. v. Williams, 168 Ala. 612, 53 South. 76; Woodstock Co. v. Kline, 149 Ala. 391, 43 South. 362; King v. Woodstock Co., 143 Ala. 632, 42 South. 27, 40 Cyc. 2802.
As above set out, it was a question for the jury as to whether or not what was said by Langley, in the conversation with the plaintiff, just before the latter went to room 13, amounted to an order. There was therefore no error in refusing defendant’s requested charge 6.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.