Opinion
8 Div. 263.
November 25, 1920. Rehearing Denied February 10, 1921.
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
Wert Hutson, of Decatur, for appellant.
The pleas of contributory negligence were clearly defective. Section 3910, last paragraph, Code 1907; 203 Ala. 82, 82 So. 96. This applies also to charge B. Counsel discuss other assignments of error, but without further citation of authority.
S. A. Lynne, of Decatur, for appellee.
Court properly gave charges B and 8. 128 Ala. 634, 30 So. 580; 204 Ala. 51, 85 So. 291; 147 La. 464, 85 So. 206. Counsel insist, with citation of authority, that the appeal should be dismissed, but in view of the opinion it is not deemed necessary to here set them out.
Plaintiff, appellant, declared under subdivision 1 of section 3910 of the Code (Employers' Liability Act) as for injuries caused by a defect in defendant's machinery. Pleas 2 and 4, though labeled pleas of contributory negligence, were, in effect, pleas of assumption of risk and undertook to set up a defense according to the first phase of the proviso shown by the last paragraph of the section as printed on page 602 of the Civil Code of 1907. The sufficiency of these pleas has been affirmed by this court in a number of cases. Standard Portland Cement Co. v. Thompson, 191 Ala. 444, 67 So. 608; Clinton Mining Co. v. Bradford, 192 Ala. 576, 69 So. 4; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Reynolds v. Woodward Iron Co., 199 Ala. 231, 74 So. 360; Clinton Mining, Co. v. Bradford, 200 Ala. 308, 76 So. 74. The same authorities show that the court's ruling on the demurrer to replication A was free from error.
The demurrer to plea 10, a proper plea of contributory negligence, was properly overruled, and charge B was properly given on defendant's request. S.-S. Steel Iron Co v. White, 203 Ala. 82, 82 So. 96.
Charge 8, given at the request of defendant, should have been refused. More strength was not the sole proper test of the fitness of the machine after, or for that matter before, the break was repaired. The allegation of the complaint was that the machine, after it was repaired, vibrated or wabbled. There was evidence to sustain this allegation, and it was for the jury to say whether the machine was defective for this reason, notwithstanding it may have been as strong as it had been before it was broken, and whether such defect, if defect it was, proximately caused plaintiff's injuries.
It does not appear that the trial court committed error in its rulings on the evidence, offered with a view, it seems, to showing that defendant had acquiesced in the continuous violation of its rule which required its employés not to wear gloves when operating the machine in question. A. G. S. v. Roach, 110 Ala. 266, 20 So. 132. Demurrer to plea 6, in which defendant attempted to set up such a rule and plaintiff's violation of it, was sustained, thus putting that issue out of the case. Nor was this evidence admissible under amended plea 7. The evidence in the case of each assignment of error was patently irrelevant to the issue whether or not defendant had instructed plaintiff not to use gloves.
For the error shown the judgment is reversed. The cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.
On Rehearing.
Application for rehearing overruled.
ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.