Counts 2 and 3, upon which the cause went to the jury, were framed under subdivisions 1 and 2 of section 3910 of the Code of 1907. In so far as it is necessary here to state, count 2 alleged that the defect in defendant's plant was "that the entry, at the place where said rock fell, from which said rock fell upon plaintiff and injured him, as aforesaid, was *Page 451 defective," and count 3, after alleging negligence of the superintendent, "that said person, to wit, Charley Haynes, negligently, in the exercise of such superintendence, caused or allowed said rock to fall upon plaintiff and injure him as aforesaid, and on the occasion aforesaid." The allegation in the first count sufficiently designates the part or place where the defendant's plant was defective, and puts it on notice as to what it must defend. Jackson Lumber Co. v. Cunningham,141 Ala. 206, 37 So. 445; A. G. S. R. R. Co. v. Davis, 119 Ala. 572,24 So. 862.
The allegation in the third count is a direct charge that defendant's superintendent, in the exercise of such superintendence, negligently caused or allowed the rock to fall on plaintiff. This allegation was sufficient. Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 So. 700.
Pleas 10, 13, 14 and 15 place too great a burden on the plaintiff. It does not follow that a plaintiff is guilty of contributory negligence in working, merely because he knows the work to be dangerous, without regard to the degree of danger and risk involved, nor unless it be of a danger which would ordinarily deter one of ordinary prudence from the undertaking. Woodward Iron Co. v. Andrews, 114 Ala. 243, 21 So. 440; Eureka Co. v. Bass, 81 Ala. 200, 8 So. 216, 60 Am. Rep. 152; Black v. Roden Coal Co., 178 Ala. 531, 59 So. 497. Nor is it permissible as in plea 13 to merely set out the conclusion of the pleader.
Plaintiff's replication 1 to pleas 18 and 19 was, in effect, the general issue, demurrer to which was properly overruled.
The testimony of Mike Howard and Henry Fuller as to whose duty it was to keep up the roof of the entry was properly admitted. One of the issues in the case was the point at which the injury took place. If it was at one point, the duty was on the plaintiff. If at a point where the work had been accepted, the duty rested on the defendant. As to this, there was no dispute. Duty and place depending upon each other, testimony as to duty was testimony as to place and not a conclusion of law or fact.
It having been testified without objection that an X-ray photograph had been made of plaintiff's injuries, it was competent for plaintiff to testify as to where the evidence was, and to explain why he did not produce it at the trial.
Upon the question of consideration in the release offered in evidence, the evidence was in conflict. If there was no consideration paid for the release, it was void and of no avail as a defense, even if it was signed by plaintiff, and hence the court did not err in refusing to give charges 4 and 5 as requested by defendant.
We find no error in the record, and the judgment is affirmed.
Affirmed.
On Rehearing. This court has re-read the opinion in the case of Black v. Roden Coal Co., 178 Ala. 531, 59 So. 497, and is convinced that the former ruling of this court was error, and that plea 3 was good. We are further fortified in this by the decisions in the following: Merriweather v. Sayre Mining Co., 161 Ala. 441,49 So. 916; Pioneer M. M. Co. v. Thomas, 133 Ala. 279,32 So. 15; Mobile Elect. Co. v. Sanges, 169 Ala. 341,53 So. 176, Ann. Cas. 1912B, 461; Munson S. S. Line v. Harrison, 200 Ala. 504, 76 So. 446.
The judgment of affirmance is set aside, and for the error pointed out the judgment is reversed and the cause remanded.
Reversed and remanded.
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