STONE, C. J.
This action is brought under the employer’s act, § 2590, Code of 1886. It counts on the negligent and unlawful killing of Peter Pitts, an employe of the appellant corporation. • The complaint was amended by striking out the third count, and the trial was had on the remaining four counts. A demurrer was interposed to each of the counts of the complaint, which the City Court overruled ; but that ruling is not assigned as error.
The appellant corporation was operating a coal pit. It had an elevated tramway, erected and operated for the purpose of removing the refuse which was mined with the coal. At the end of the tramway was machinery called a “tipple,” used in emptying the refuse from the cars. The cars on this tramway were moved by hand power, and plaintiff’s intestate was employed in this service at the time he suffered the injury which caused his death. The machinery which operated the tipple is described in the first count of the complaint as follows: “Plaintiff alleges that said tipple was connected with said track by means of a pole about nine feet in length, one end of which pole was fastened to the tipple, and the other end projected over and along the track, and was held in place by means of an iron ring, or belt, or groove fastened to the track, and placed over the end of the pole; and was so constructed that when the said hand car had reached the tipple, and said ring, or belt or groove was removed from the end of the pole, the said end wonld go up in .the air as the tipple went down.” The negligence of defendant charged in this, the first count, is, that plaintiff’s intestate, in what he did, was conforming to orders he was bound to obey, and while so obeying and conforming to orders, “the end of said pole which extended over the track flew up with great violence and struck plaintiff’s intestate and injured him so that he died. And plaintiff alleges that said pole was likely to fly up prematurely, and had often done so before, and the work that plaintiff’s intestate was directed to do, • • Avas thereby rendered hazardous and dangerous; and said person in tiie employment of defendant, to whose orders he was bound to conform, and • • did conform, knew that said pole was liable and likely to fly up prematurely and had often done [289]*289so before. • • That the injury, and death • • were caused by reason of the negligence of the said person, to whose orders plaintiff’s intestate was bound, to conform and did conform.”
The gravamen of the second count is, “that said'tramway or trestle became and was in a defective condition, in this, that that part of the tramway or-, trestle approaching, and next to the tipple, had become and was much lower than the portion nearer the mouth of the mine; • • and by reason of the defect in the condition of the tramway and trestle as aforesaid, the said car went with great force and speed upon said tipple, and caused the same to tip suddenly and violently, and thereby caused a pole which was attached to said tippíe • • to fly up and strike plaintiff’s intestate,” &c.
The 4th count is substantially, like the first, with this addition: “Plaintiff alleges that said injury was caused by reason of a defect in the ways, works or machinery, of defendant in this, that no sufficient provision was made to secure the end of said pole, which ex-tended over and along said track. • • And plaintiff alleges that said defect had not been remedied owing to the negligence of the person in the employ of the defendant, and entrusted by the defendant with the duty of seeing that the ways, works and machinery were in proper condition.”
The fifth count avers that “the defendant negligently ordered him (plaintiff’s intestate) to push and assist in pushing a loaded tram car over a tramway, along and upon a trestle, • • and to place and assist in placing said tram car upon said tipple.” This count then alleges how said injury was inflicted, and adds: “And plaintiff alleges that the work which plaintiff was ordered by the defendant to perform was dangerous and hazardous, by reason of the fact that said pole was liable to fly up as aforesaid, and defendant knew that the same was dangerous and hazardous, by reason of the fact that said pole was liable to fly up as aforesaid; and the defendant negligently failed to notify the deceased of the danger.”
The case was tried on two pleas, not guilty, and contributory negligence on the part of plaintiff.
The witness Lewis testified that he was well and long acquainted with the use, if not with the construction, of the machinery he was called to testify about. He stated he had had much experience in its use. We think he should have been permitted to testify that the pattern of the tipple employed on the occasion of the injury “was reasonably adapted [290]*290for the purpose for which, it was usedand if he knew the condition it was in when the disaster occurred, whether in good repair or the contrary, he could state that.—Young v. O’Neal, 57 Ala. 566; Ga. Pac. Rwy. Co. v. Propst, 83 Ála. 518; Blackman v. Collier, 65 Ala. 311; Mobile & M. Rwy. Co. v. Blakely, 59 Ala. 471; Hames v. Brownlee, 63 Ala. 277. The City Court erred in excluding this testimony.— M. & O. R. R. Co. v. George, 94 Ala. 199.
The drift of the testimony which went before the jury in this case tends to show that plaintiff’s intestate was a youth about 19 years old, that lie was in the employ of the defendant corporation, and that he was usually employed in work, other than that in which he lost his life. There was an elevated tramway, along which hand cars were employed in removing the refuse from the mine, which extended some 140 feet from a point above the mouth of the pit. At the end of this tramway, and on a line with it, was what is known as a tipple, which moved on an axle. A pole connected with the tipple extended some feet along the tramway, and was fastened to it by a movable ring. This pole, so fastened, kept the tipple in place until the hand car was placed upon it, when, by removing the ring, the pole would fly uj>, and, by releasing the tipple, cause it to do its work. The first 70 feet of this tramway was nearly horizontal, but from that point to the tipple, it was down grade. The testimony as to the degree of this inclination is not entirely in harmony— some of the witnesses giving it a steeper descent than others do. All the testimony agrees that in descending this down grade to the tipple the hand car moved of its own momentum and rapidly, and that on this occasion the fastening which held the pole in place became detached and the pole, flew up prematurely; thus striking intestate on his head and causing his death. There was testimony that on a former occasion a similar, premature flying up of the pole had occurred; but the superintendent or mine boss denied all knowledge or information of such occurrence. A witness for plaintiff had testified that he himself had notified the manager of it. It was proved and not denied that the superintendent or boss directed deceased to assist the hands regularly detailed for the service in placing the car from the platform on the tramway, and it was not claimed, or attempted to be proved, that he warned him of any danger in this service. There was testimony that before starting on the tramway with the hand ear, the regular hands in the service cautioned plaintiff’s intestate against the pole connected with the tipple; and when on the down grade, within 15 [291]*291or 20 feet of tbe end of tbe tramway each of them told him to “let loose,” accompanied with a backward motion of the hand.
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STONE, C. J.
This action is brought under the employer’s act, § 2590, Code of 1886. It counts on the negligent and unlawful killing of Peter Pitts, an employe of the appellant corporation. • The complaint was amended by striking out the third count, and the trial was had on the remaining four counts. A demurrer was interposed to each of the counts of the complaint, which the City Court overruled ; but that ruling is not assigned as error.
The appellant corporation was operating a coal pit. It had an elevated tramway, erected and operated for the purpose of removing the refuse which was mined with the coal. At the end of the tramway was machinery called a “tipple,” used in emptying the refuse from the cars. The cars on this tramway were moved by hand power, and plaintiff’s intestate was employed in this service at the time he suffered the injury which caused his death. The machinery which operated the tipple is described in the first count of the complaint as follows: “Plaintiff alleges that said tipple was connected with said track by means of a pole about nine feet in length, one end of which pole was fastened to the tipple, and the other end projected over and along the track, and was held in place by means of an iron ring, or belt, or groove fastened to the track, and placed over the end of the pole; and was so constructed that when the said hand car had reached the tipple, and said ring, or belt or groove was removed from the end of the pole, the said end wonld go up in .the air as the tipple went down.” The negligence of defendant charged in this, the first count, is, that plaintiff’s intestate, in what he did, was conforming to orders he was bound to obey, and while so obeying and conforming to orders, “the end of said pole which extended over the track flew up with great violence and struck plaintiff’s intestate and injured him so that he died. And plaintiff alleges that said pole was likely to fly up prematurely, and had often done so before, and the work that plaintiff’s intestate was directed to do, • • Avas thereby rendered hazardous and dangerous; and said person in tiie employment of defendant, to whose orders he was bound to conform, and • • did conform, knew that said pole was liable and likely to fly up prematurely and had often done [289]*289so before. • • That the injury, and death • • were caused by reason of the negligence of the said person, to whose orders plaintiff’s intestate was bound, to conform and did conform.”
The gravamen of the second count is, “that said'tramway or trestle became and was in a defective condition, in this, that that part of the tramway or-, trestle approaching, and next to the tipple, had become and was much lower than the portion nearer the mouth of the mine; • • and by reason of the defect in the condition of the tramway and trestle as aforesaid, the said car went with great force and speed upon said tipple, and caused the same to tip suddenly and violently, and thereby caused a pole which was attached to said tippíe • • to fly up and strike plaintiff’s intestate,” &c.
The 4th count is substantially, like the first, with this addition: “Plaintiff alleges that said injury was caused by reason of a defect in the ways, works or machinery, of defendant in this, that no sufficient provision was made to secure the end of said pole, which ex-tended over and along said track. • • And plaintiff alleges that said defect had not been remedied owing to the negligence of the person in the employ of the defendant, and entrusted by the defendant with the duty of seeing that the ways, works and machinery were in proper condition.”
The fifth count avers that “the defendant negligently ordered him (plaintiff’s intestate) to push and assist in pushing a loaded tram car over a tramway, along and upon a trestle, • • and to place and assist in placing said tram car upon said tipple.” This count then alleges how said injury was inflicted, and adds: “And plaintiff alleges that the work which plaintiff was ordered by the defendant to perform was dangerous and hazardous, by reason of the fact that said pole was liable to fly up as aforesaid, and defendant knew that the same was dangerous and hazardous, by reason of the fact that said pole was liable to fly up as aforesaid; and the defendant negligently failed to notify the deceased of the danger.”
The case was tried on two pleas, not guilty, and contributory negligence on the part of plaintiff.
The witness Lewis testified that he was well and long acquainted with the use, if not with the construction, of the machinery he was called to testify about. He stated he had had much experience in its use. We think he should have been permitted to testify that the pattern of the tipple employed on the occasion of the injury “was reasonably adapted [290]*290for the purpose for which, it was usedand if he knew the condition it was in when the disaster occurred, whether in good repair or the contrary, he could state that.—Young v. O’Neal, 57 Ala. 566; Ga. Pac. Rwy. Co. v. Propst, 83 Ála. 518; Blackman v. Collier, 65 Ala. 311; Mobile & M. Rwy. Co. v. Blakely, 59 Ala. 471; Hames v. Brownlee, 63 Ala. 277. The City Court erred in excluding this testimony.— M. & O. R. R. Co. v. George, 94 Ala. 199.
The drift of the testimony which went before the jury in this case tends to show that plaintiff’s intestate was a youth about 19 years old, that lie was in the employ of the defendant corporation, and that he was usually employed in work, other than that in which he lost his life. There was an elevated tramway, along which hand cars were employed in removing the refuse from the mine, which extended some 140 feet from a point above the mouth of the pit. At the end of this tramway, and on a line with it, was what is known as a tipple, which moved on an axle. A pole connected with the tipple extended some feet along the tramway, and was fastened to it by a movable ring. This pole, so fastened, kept the tipple in place until the hand car was placed upon it, when, by removing the ring, the pole would fly uj>, and, by releasing the tipple, cause it to do its work. The first 70 feet of this tramway was nearly horizontal, but from that point to the tipple, it was down grade. The testimony as to the degree of this inclination is not entirely in harmony— some of the witnesses giving it a steeper descent than others do. All the testimony agrees that in descending this down grade to the tipple the hand car moved of its own momentum and rapidly, and that on this occasion the fastening which held the pole in place became detached and the pole, flew up prematurely; thus striking intestate on his head and causing his death. There was testimony that on a former occasion a similar, premature flying up of the pole had occurred; but the superintendent or mine boss denied all knowledge or information of such occurrence. A witness for plaintiff had testified that he himself had notified the manager of it. It was proved and not denied that the superintendent or boss directed deceased to assist the hands regularly detailed for the service in placing the car from the platform on the tramway, and it was not claimed, or attempted to be proved, that he warned him of any danger in this service. There was testimony that before starting on the tramway with the hand ear, the regular hands in the service cautioned plaintiff’s intestate against the pole connected with the tipple; and when on the down grade, within 15 [291]*291or 20 feet of tbe end of tbe tramway each of them told him to “let loose,” accompanied with a backward motion of the hand. He did not obey this instruction, but held on to the oar, following it up. There was some variation in 'this part of the testimony, all 'of which was given by plaintiff’s witnesses. One witness testified that he heard the command given to “hold it.” This witness was not on the tramway. Another of plaintiffs witnesses testified that this command was given by him, not to intestate, who was at the rear end of the car, but to his regular co-worker who was at one side of it, while he, witness, was at the other, each endeavoring to check the car’s motion.
There was no proof tending to show any defect or want of repair of the tipple, the connecting pole, or of the ring which held them in place. The only defect of the ways, works, or machinery charged in the complaint, of which any proof was made, was and is that the down grade of the tram-way was so steep that a heavily loaded car could not be kept under control, while descending it. According to some of the testimony, this defect, and the consequent rapid, uncontrollable movement of a descending, heavily laden car caused the pole or lever to break loose from its fastening, and fly up prematurely. This was the only defect, “in the ways, works, machinery, or plant,” which there was any testimony tending to prove. This alleged defect is the gravamen of the second count.
The wrong complained of in the fourth count is, “that no sufficient provision was' made to secure the end of said pole.” This refers to the lever which held the tripple in place. No proof was made that this appliance was defective in itself.
The fifth count alleges that the work which plaintiff’s intestate was commanded to do was “dangerous and hazardous,” and “the defendant negligently failed to notify the deceased of the danger.” We think the work which plaintiff’s intestate was instructed to do was in its nature hazardous, and that in assigning an inexperienced youth to such perilous service, the boss, or person in control should have warned or cautioned him of the danger. If, however, he was sufficiently notified and cautioned by a co-laborer, and heedlessly disregarded such warning, this would leave him without excuse.
We have said that the ruling on demurrer has not been assigned as error. If it were we would hold the first count does not set forth a good cause of action. We make this statement as a guide for another trial, and to prevent the question from coming again upon us.
[292]*292Allowing amendment of pleadings, while the trial was in progress, in the matter here complained of, was free from error. 3 Brick. Dig. 28, §§ 5 and 7; Code of 1886, § 2833.
There was no testimony before the jury tending to support the fourth count of the complaint, and charge 3 asked by defendant ought to have been given.
Defendant’s series of charges requested. Charge No. 6, is subject to criticism, in two respects. It employs the words, “direct” and “directly,” instead of the appropriate words, proximate and proximately. This was calculated to mislead the average juror. But there is a graver fault. The conclusion is too broad. Its hypothesis, if found to be true, would certainly acquit the defendant of fault, in the matter of defects in the ways, works and machinery; but it would extend no farther. It would not necessarily exonerate defendant of the charge made in the 5th count, if the jury should find that plaintiff’s intestate was assigned to a perilous work, without receiving instructions from some quarter that would be calculated to put him on the lookout. This would present a, question, for the jury, on proper instructions. But we must not be misunderstood. If intestate received from other employees the notice and warning he should have had from the superintendent Or boss, and disregarded it, this left him without excuse.
Charge 8, had no testimony to support its hypothesis, and it was rightly refused for that reason, if for no other.
Charge 9, hypothesises the overload of the tram car as the sole cause of the injury suffered. There is no count in the complaint based on this alleged fault of defendant, and, hence, no notice was given by the pleadings that a recovery would be sought on this account. It was not within the issue formed. This charge ought to have been given.
The legal principles necessary to be consulted in the trial of this case have been many times declared by this Court. L. & N. R. R. Co. v. Allen, 78 Ala. 494; Ga. Pac. Rwy. Co. v. Propst. 83 Ala. 518; Ga. Pac. Rwy. Co. v. Davis, 92 Ala. 300; M. & O. R. R. Co. v. George, 94 Ala. 199; 10 So. Rep. 145. See also Washington & G. R. R. Co. v. McDade, 135 U. S. 554.
Charge 11, asked by the defendant, should have been given. The testimony was without conflict that Peter Pitts was a minor, a member of his father’s household, and that the latter supported him and received the wages he earned. Williams v. S. & N. R. R. Co., 91 Ala. 635; 9 So. Rep. 77.
Beversed and remanded.