Barker v. Tennessee Coal, Iron & R. R.

GARDNER, J. Snit by employee against employer, to recover damages sustained while in the service of the employer. The work in which plaintiff was engaged at the time of the injury was in assisting other laborers in tearing down a certain wall of a coke oven, which had become warped. The suit was based' upon the Employers’ Liability Act, and counted for recovery upon the negligence of one Bryant, the foreman of the crew engaged in this work. For a report of the case on former appeal, we are referred by counsel to the case reported as Tennessee Coal, Iron & Railroad Co. v. Barker, 6 Ala. App. 413, 60 South. 486. The errors assigned relate principally to charges given to the jury by the court at the instance of the defendant. There is no count of the complaint charging willfulness, wantonness, or an intentional injury to the plaintiff; but plaintiff seeks to recover on account of the negligence of one Bryant, as superintendent, under whom plaintiff was engaged in work for the defendant. Therefore the charges given to the jury, which predicate plaintiff’s right to recover, upon the negligence of the said Bryant, are in accordance with the complaint; they state no incorrect proposition of law, [583] and therefore there was no reversible error in the giving of charges 1, 5, 6, 7, 8, 11, 12, and 14, at the request of the defendant.—T. C. I. & R. R. Co. v. Barker, 6 Ala. App. 413, 60 South. 486. While it may be true that some of these charges possessed a misleading tendency, that some others were argumentative, and for these reasons might properly have been refused, yet for the reasons above stated the giving of these charges was not reversible error. Charge 9, given to the jury, authorizes the jury to disregard the testimony of a witness, if that witness had knowingly sworn falsely as to any material fact in the case. This seems to be a corrcet charge, as held in the cases of Stone v. State, 11 Ala. App. 141, 65 South. 963, and Childs v. State, 76 Ala. 93. There was no error in giving charge 10, although as framed we think it could properly have been refused. Charge 13 might have been refused by the court, for that it is argumentative, and lays stress upon a part of the testimony; but-there was no reversible error in giving this charge. We are of the opinion that the question of the negligence of the foreman, which forms the basis of the suit, was properly submitted to the jury for their consideration; and we find no error in the action of the court in overruling the motion for a new trial. While the question asked by plaintiff of witness Bryant, on cross-examination, as to how long a distance the wall was leaning over, might not have been subject to the objection interposed, yet the bill of exceptions discloses that immediately thereafter the court said, “Let him state the condition of the wall,” and the witness proceeded, without further objection, to testify as to the condition of the wall, that it was leaning over four or five inches, and that the wall fell for about [584] 60 or 80 feet. If there could be said to have been any error in this ruling, it was clearly subsequently and immediately cured, and was therefore without injury. The other assignments are clearly not erroneous and need no special consideration. Finding no error in the record, the judgment of the court below is affirmed. Affirmed. McClellan, Sayre, and de Graffenried, JJ., concur.