Walker v. Woodward Iron Co.

MAYFIELD, J. — A majority of the court are of the opinion that the jury could infer negligence on the part of Johnson in causing Atkins to move the crane by saying: “All right; that they were in the clear.” It is true the witness said he did not know which one said this, Walker or Johnson; but Walker testified that he did not give the order or instruction, and the jury could infer that Johnson was the man who said: “All right; that they were in the clear.” It was also a question for the jury as to whether or not this order caused Atkins to move the crane, as he said he proceeded to move the crane immediately after hearing this order. It was therefore a question for the jury as to whether or not [586] the plaintiff proved the negligence charged in the first count of the complaint, and the trial court erred in giving the general charge for the defendant. It was also a question for the jury as to whether or not the plaintiff was guilty of contributory negligence. Reversed and remanded. Dowdell, C. J., and Anderson, McClellan, and Somerville, JJ., concur.