Tennessee C. I. & R. R. v. George

49 So. 681, 161 Ala. 421, 1909 Ala. LEXIS 128

Opinion

ADERSON, J.

The proof shows that the plaintiff and his companions, who had left the room because of the falling of something from overhead, were ordered back by the foreman, Knowles, and assured by him that there was no further danger. Whether Knowles did or did not know of the loose washer, which fell on the plaintiff, it was open to the jury to find that he was guilty of negligence in ordering the plaintiff back to the room without first ascertaining that there were no more loose missiles overhead. — Bobinson Mining Co. v. Tolbert, 132 Ala. 465, 31 South. 519.

There was no- error in permitting the plaintiff to show thjat a scantling or something else fell on- the workmen, as it was a circumstance for the jury in ascertaining whether or not Knowles was guilty of negligence for failing to examine conditions above before ordering the workmen back.

The complaint charges plaintiff’s injuries to the negligence of the defendant’s foreman “Bill Nolan,” and the proof shows that the name of the foreman was “Will Knowles.” This was a fatal variance, which was raised by the general charge, requested by the defendant, and which should have been given.

The judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.