King v. Woodstock Iron Co.

SIMPSON, J. The demurrers to the 3rd plea were properly overruled. The intestate, being eighteen or nineteen years of age, is presumed to have been of sufficient intelligence to assume the risk of the employment to the same extent as if he was twenty-one, and if he was inexperienced and needed special instruction, that was a matter to be shown by evidence on the part of the plaintiff. — Williams v. S. & N. Ala. R. R. Co., 91 Ala. 335, 338; Lovell v. DeBardeleben Coal & Iron Co., 90 Ala. 15. And the demurrer to the fourth plea was also properly overruled, for the same reason, and the further one that there is no allegation going to show that there was any special increased danger (which was not obvious) in carrying this train of cars down, than there was in carrying the.train which he had previously managed. The demurrers to the fifth plea, was properly overruled. Although the pleadings show that the intestate was a minor, yet they show that he .had reached the age of discretion, so as to charge him with responsibility in such matters. So, it Aims not necessary to deny that he avus a minor, nor, in vieAV of his oavii assurances that he understood the duties of the position, to give him any special instructions. As to that part of the plea which alleges that defendant would not have placed him on duty except for his assurance, if it was improper, it should have been reached by a. motion to strike. The replications to the 4th plea are mere reiterations of facts alleged in the complaint, and do not present any neAv issues for the determination of the jury, and the danger of coming into collision with a. car which the intestate himself had left on the track, was so obvious .as not to suggest any special warning or instruction, in relation thereto to a young man eighteen years of age. The next error assigned is the giving of the general [636] charge by the court, on the written request of the defendant. It is shown by the testimony that the intestate was inexperienced, that he was employed only the day before* the accident occurred, and one witness testified that it was “Dangerous to put an inexperienced man on the cars coming down this incline.” It is true that Fipps did not peremptorily order the intestate to go on the cars, as the evidence is that Fipps himself remarked, “I am going to ride them down,” and the intestate replied, “I’ll go” or “I’ll ride them down,” ¡and Fipps then said “Well then go- and get on at the double brakes and hold them, and if they stop at the crossing I’ll pull them off.” As the intestate was subject fo the orders of Fipps, inexperienced and not supposed to be acquainted with the dangers of the situation, the mere fact that he showed a willingness to undertake the work, by offering to ride the oars down, did not relieve Fipps from the duty not to send him on a, perilous journey, and the instructions given by Fipps constituted an order to the intestate to ride the cars down. It is true that it 4s not clear, from the evidence, what did cause the accident; yet, from what has been said, it is evident that there were facts in evidence, which rendered it proper to submit the case to- the jury. Consequently, the court erred in giving the general charge in favor of the defendant. The judgment of the court is reversed and the cause remanded. McClellan, C. J., Tyson and Anderson, J.J., concurring.