Under Liability Act, subd. 1 (Code 1907, § 3910), imposing upon the master the duty to [2] The remaining assignment is based up-repair and inspect the ways, machinery, etc., the on the overruling of the motion for a new trial, which questions the sufficiency of the evidence to support the verdict. While there are conflicts in the evidence, we have no hesitation in declaring that the jury could well have rendered the verdict for the defendant. See Florida East Coast Ry. v. Geiger, 66 Fla. 64 South. 238.

TAYLOR, COCKRELL, HOOKER, and acter and frequency of the inspection must deWHITFIELD, JJ., concur.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

not, after reasonable time and opportunity are | ger of so doing, plaintiff's intestate negligentafforded, performed, and injury to another serv-ly reached his head and arm through the ant proximately results therefrom, the omission is negligence to liability unless defeated by spokes of the flywheel of said engine, knowing that at that time said engine was pinched [Ed. Note.-For other cases, see Master and to the center, and was ready to start after Servant, Cent. Dig. § 385-421; Dec. Dig. the steam valve on said engine opened, and 185.*]

some affirmative defense.

3. MASTER and SERVANT (§ 286*)-ACTION FOR INJURY TO SERVANT-QUESTION FOR JURY.

In an action under Liability Act, subd. 1 (Code 1907, § 3910), for an injury to a servant caused by a stationary engine being started by a valve leak, evidence held to require the submis sion to the jury whether proper inspection would have discovered the defect.

said wheel of said engine slowly turned over, and said intestate's head and neck were caught by the driving rod and spoke of the driving wheel, and he was killed. This defense is set up in various pleas in various ways.

Frank S. White & Sons, of Birmingham, [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010- for appellant. Charles A. Calhoun, of Birm1015, 1017-1033, 1036-1042, 1044, 1046-1050;ingham, and Brown, Leeper & Koenig, of Dec. Dig. 286.*] Columbiana, for appellee.

Appeal from Circuit Court, Shelby County; A. H. Alston, Judge.

Action by Joseph W. Epsey, administrator, against the Cahaba Coal Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

MCCLELLAN, J. The action is by the personal representative of a servant (J. P. Epsey) against the master (appellee) for negligently causing intestate's death while intestate was engaged in the service of the master. The cause of action was undertaken to be stated in a number of counts. Some were drawn under the first subdivision of the Liability Act (Code, § 3910), and others were intended to declare upon the breach of the common-law duty to exercise reasonable care to afford the servant reasonably safe appliances with which to do his work. The trial court, at defendant's request, gave the general affirmative charge, on the whole case, for the defendant; and so, on the theory that there was no count in the complaint that did not contain material averments to sustain which there was an entire failure of proof.

Joseph W. Epsey sues as administrator of the estate of J. P. Epsey, for the death of his intestate, and alleges that prior to February, 1912, J. P. Epsey was in the employment of defendant, Cahaba Coal Company, a private corporation, and was operating a stationary or compressing engine, used in connection with the business of said defendant, and while engaged in the discharge of his duties, under said employment, plaintiff's intestate was killed. The first count alleges death to have been proximately caused by reason of a defect in the condition, ways, works, etc., in that the valve of the engine leaked, thereby causing steam to accumulate in the cylinder, [1] Under the doctrine declared in Tutand the engine to start in motion without wiler C. C. & I. Co. v. Farrington, 144 Ala. pulling the controller or lever. The second 157, 167, 39 South. 898, treating the sixth count is the same as the first, but varies count, it must be ruled that the evidence here somewhat in the phraseology. The third failed to sustain the counts rested on the count alleges simply that the engine was de- common-law duty summarily stated above. fective. The fourth count is for a negligent It appears that the duty of keeping the mafailure to provide plaintiff's intestate with chinery in question in proper condition was reasonably safe appliances in this: That the committed, as might have been done, to felengine used by defendant had a leaky throt- low servants of intestate; and that if neglitle valve. The fifth count alleged wanton-gence affected the unsafe condition thereof, ness of defendant's servants or agents while due to want of due care or diligence in inacting within the line and scope of their spection or in the want of due care or diliemployment in that, knowing that the throt-gence in repairing the defective condition, tle valve was in a leaky condition, and with such knowledge, they permitted plaintiff's intestate to operate said engine while in this condition. The sixth count is the superintendent's negligence count, alleging the superintendent to be unknown. The seventh count is the superintendent's negligence count, alleging the superintendent to be one Dunaway. The eighth count is the conformity to orders or direction count; the ninth the same as eighth, but giving the name of Dunaway as the negligent superintendent who gave the negligent order.

The pleas were contributory negligence, in that in the performance of his duties, and of the knowledge and appreciation of the dan

it was that of fellow servants of the intes tate. We can see in the evidence no other possible conclusion as respects the counts based on the breach of the common-law duty mentioned. So the impropriety vel non of the court's action in thus instructing the jury must be determined with reference to the counts drawn under the first subdivision of the Liability Act.

[2, 3] The conclusions of fact we will state, drawn from the whole evidence, may have been attained by the jury if the charge of the court had not forbidden the exercise of that function by the jury. The condition of the engine (stationary) was defective in respect of the throttle valve which, when in perfect

condition, would prevent, absolutely, the pas- works, machinery, or plant-bearing in mind sage of steam from the boiler to the place always that the master is never accountable whereat its pressure would put the engine as an insurer in the premises and, also, that in motion. Hence the propriety of the af- the character and frequency of the inspection firmative charge could not be predicated of must depend upon the subject of the duty, the failure of proof in respect of defect in whether it is machinery peculiarly subject the condition of the machinery. If a defect to wear and to self-created deficiencies in its in the condition, counted on in the complaint, vital parts, or some other agency of the masis found to have existed and to bave caused ter's business in which normal use does not, the injury suffered by the servant, still the ordinarily, create defects in its condition. master cannot be held liable "unless the de- If the duty of inspection is "intrusted" to a fect therein • arose from, or had servant and is not, after reasonable time and not been discovered or remedied owing to the opportunity are afforded, performed, and innegligence of the master or employer, or of jury to another servant proximately results some person in the service of the master or therefrom, the omission is negligence to liaemployer, and intrusted by him with the bility, unless defeated by affirmative defense. duty of seeing that the ways, works, ma- So, too, the omission by one "intrusted" to chinery, or plant were in proper condition." exercise, after reasonable time and opporIt is, as has been often ruled here, essential tunity are afforded, due care and diligence to a recovery on a count or counts declaring to repair-to remedy, as the statute sayson a status within the first subdivision of the known defect, and in proximate consethe Liability Act, that evidence be adduced quence thereof another servant is injured, tending to show negligence within the quoted that omission is negligence to liability, unless condition of the act. Under this provision defeated by affirmative defense. Reasonable of the act the requisite negligence may be time and opportunity to discover or to rethat of the master or that of a servant or pair are factors. If either are absent, negliservants commissioned as the quoted condi- gence is not shown. Clements v. A. G. S. R. tion stipulates. We have stated that the evi- R. Co., 127 Ala. 166, 28 South. 643. dence shows that the duty stipulated was "intrusted" to another servant. So the possible evidential lead to prima facie right to recover must be found, if at all, in evidence, at least, to show that the one so "intrusted" was negligent within the provision of the quoted condition of the act. There being evidence tending, as stated, to show that there was a defect in the condition of the engine, described in the complaint, the issue of fact was, for the purpose of testing the right vel non of the defendant to the affirmative charge on the whole case under the theory before stated, narrowed to this: Was there evidence, or reasonable inference from evidence, tending to show negligence, for which defendant was accountable, in respect of the discovery or remedy of the defect in condition of the engine?

[4-7] The Liability Act, in the particular that it predicates negligence of the failure of the master to discover defects in the condition of the ways, etc., contemplates inspection to the end indicated. The duty to inspect exists, just as the duty to remedy defects in conditions exists. The Liability Act has not, in this particular, extinguished the duty of inspection. With us the duty of inspection, in a case of the kind in hand, may be delegated to a competent servant in whose selection the master has employed the requisite care. The measure of care and diligence for the proper performance of the duty of inspection for defects in condition, etc., is the exercise and employment of the care, prudence, and diligence a reasonably prudent man would exercise and employ, under similar circumstances, to ascertain whether

[8] The evidence in this record tends to show, at least, that a throttle valve, when new, may be perfect in its adjustment, thereby entirely preventing, when closed, the passage of steam through or by it; that the effect of steam and hot water upon the metal or the mechanism of such a valve, "its seat," will gradually cause it to leak; that the throttle valve in question did leak, and was leaking some hours before the intestate's injury, thereby permitting steam to pass to the point in the cylinder whereat the steam power would apply, if in sufficient quantity, to put the engine in motion; that the proper process for turning on the steam, by intestate who operated the engine, was by opening the throttle valve, though there was another valve near the boilers at or near the head of the "steam line," generally operated by the fireman; that, when in good condition and closed, would prevent the passage of steam into the steam line leading to the engine; that when the engine stopped, about three hours before Epsey's fnjury, it came to a rest "on center," wherefrom steam power alone could not start it; that a bar was furnished to "pinch" the engine "off center:" that Dunaway had, to quote him here, “just finished my [his] work a minute or two

and was getting ready to start it up, and was pinching it off the center with this bar there for the purpose, and there was some little screaking noise about the engine as I [he] was pinching it off that attracted Mr Epsey's attention, and he threw up his hand and said, 'Hold on a minute,' or something like that, I do not remember the exact words, but just as he said that the engine

For the error in giving the affirmative charge for defendant, the judgment is reversed, and the cause is remanded. Reversed and remanded.

head in the flywheel some way to look where | edge of the fact that, by accumulated steam the noise was and see if he could find out through the leaking valve, the engine would what was the matter, and at the same time involuntarily start or continue to move. The the engine had just passed the center and evidence does not make a case under the docstarted and just dropped over on the other trine of A. & B. A. R. R. Co. v. Alexander, center and stopped again and caught Mr. 161 Ala. 382, 49 South. 792. Epsey's head between the side rod and the flywheel. * * What caused the engine to move was the valve just leaking enough so that steam and hot water accumulated in the cylinder to have pressure enough to turn it half over. I would not call the valve in perfect condition at that time." Later, over plaintiff's objection, the witness testified that the engine, in that condition of valve-leak, was in "reasonably good condition." witness also testified that the superintendent inspected this engine a number of times while witness was there, but no one ever told him (witness) that the cylinder needed repairing, though that was in the line of witness' duty under his employment.

This

We have ruled that "wear" of a part of an instrumentality is some evidence of the existence of a defect in condition of such

long standing as to support a finding of such want of due care and diligence, either in discovering the defect in condition or in remedying it, as amounts to negligence. A. G.

S. R. R. Co. v. Yount, 165 Ala. 537, 543, 51

South. 737; B. R. M. Co. v. Rockhold, 143 Ala. 115, 126, 42 South. 96. On the evidence before us it cannot be affirmed, as a matter of law, that proper inspection of this engine would not have disclosed its defective condition in respect of the throttle valve-a de fect which the evidence tends, at least, to show was probably the result of long and gradual impairment by steam and hot water of the valve seat. And it cannot be affirmed, as a matter of law, that there was no evidence inviting a finding that time and opportunity were not afforded defendant to discover, by proper inspection, this defect in condition and to have remedied it.

The affirmation by Dunaway that the engine was in "reasonably good condition" appears to have been explained by him on the redirect examination. His utterance, in that phrase, seems to have reference, according to the later statement by him, to the condition with reference to when a sufficient accumulation of steam and hot water, through the leaking valve, in the cylinder would be sufficient to impart motion to the engine. He seems to have somewhat confused terms de scriptive of safety with those descriptive of the degree of condition in which the machinery was in respect of the valve in question. At any rate, his testimony was by no means conclusive to the effect that this engine's condition was not defective.

The issues were for the jury on both the complaint and the pleas, the substance of which the reporter will summarily state. The evidence is silent as to Epsey's knowl

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

(10 Ala. App. 168)

CRAVEY V. STATE.

(Court of Appeals of Alabama. Feb. 3, 1914.) INTOXICATING LIQUORS (§ 233*)-OFFENSES— EVIDENCE-ADMISSIBILITY.

In a prosecution for a violation of the prohibition law, evidence of the finding of beer in a building across the street from accused's place of business is inadmissible, where there was no evidence connecting accused with the placing or the keeping of the beer in that place. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 2982; Dec. Dig. § 233.*]

Appeal from Circuit Court, Covington County; A. H. Alston, Judge.

Will Cravey was convicted of a violation of the prohibition law, and he appeals. Re

versed and remanded.

Baldwin & Murphy, of Andalusia, for appellant. R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

WALKER, P. J. The court was in error in admitting, over the defendant's objections, evidence as to the finding by the sheriff of some beer in an old building situated across the street from the defendant's place of business, and with which and the contents of it the defendant was not shown to have had any connection in any way, the uncontroverted evidence in the case showing the absence of any such connection. There was no evidence connecting the defendant with the placing or keeping of the beer found in that place. The mere fact of its being kept there could have no legitimate tendency to prove anything for or against the defendant. Reversed and remanded.

(10 Ala. App. 170) GRIDER v. STATE. (Court of Appeals of Alabama. Feb. 3, 1914.) INTOXICATING LIQUORS (§ 233*)—PROSECUTION

-EVIDENCE-ADMISSIBILITY.

In a prosecution for a violation of the prohibition law, the admission of evidence of the finding of beer in a building with which defendant was not shown to have had any connection, and the refusal of an instruction that if defendant had no connection with the building, the evidence could not be considered, is improper. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 2982; Dec. Dig. § 233.*]

tion of the prohibition law, and he appeals. Maverick and M. P. Cornelius, both of Chi