The suit was for personal injury under subdivision 5 of Code, § 3910.
The former appeal is reported in 205 Ala. 490, 88 So. 438. The last trial resulted in judgment for plaintiff, the case being tried on counts 1 and 5 as amended. On former appeal count 1 was held subject to the demurrer assigned. On this trial the count was amended to meet the defect pointed out by Mr. Justice Miller. Under the amended count, both the injured employé (plaintiff) and the employé averred to be derelict in the discharge of his duties at the time and place were servants in the employ of defendant, within subdivision 5 of section 3910; that is to say, as employés in the discharge of their duties as such they were brought by their employment into such close relation with the operation of the railroad transporting the product of defendant's mine that the danger from its operation and the discharge of plaintiff's duties of his employment constitute an ordinary danger of the service or services in which the two employés were engaged, and, as so related in the discharge of their respective duties, come within the provisions of subdivision 5 of the statute. Woodward Iron Co. v. Thompson, supra; Woodward Iron Co. v. Hubbard,201 Ala. 106, 77 So. 400, L.R.A. 1918C, 640 (a coke pusher machine that moved on a very wide track); Sloss-Sheffield S. I. Co. v. Capps, 200 Ala. 610, 76 So. 968 (a tramway); Woodward Iron Co. v. Lewis, 171 Ala. 233, 54 So. 566 (a tramway in a mine). Demurrer was properly overruled to count 1 as amended.
The demurrer to count 5 was properly *Page 55 overruled. The averment was that plaintiff was in dangerous proximity to the track and in danger from a train of cars approaching on said track, and that defendant's servant in charge and control of said signals to the engineer in charge of the engine driving said cars, etc., "knew of plaintiff's danger at said time and place" and negligently failed to signal, etc. The word " 'danger" as used in the complaint is the equivalent of "peril." Drennen Co. v. Jordan, 181 Ala. 570, 573, 61 So. 938,939. The count was in conformity to that approved as a subsequent negligence count in L. N. R. Co. v. Calvert,172 Ala. 597, 55 So. 812.
Defendant answered by pleas of the general issue and pleas of contributory negligence, 2 to 11 inclusive. Demurrer to said special pleas as answer to count 1 was overruled, except as to plea 4, and demurrer sustained to all special pleas as answer to count 5, leaving only the general issue as answer to the count declaring for subsequent negligence. Plaintiff's replication to the pleas of contributory negligence is:
"Defendant ought not to be allowed to defeat plaintiff's cause of action, by reason of the matters and things set forth in said pleas, for the reason that plaintiff, while he was upon or in dangerous proximity to said track, as alleged in his complaint, was in danger, and plaintiff avers that the danger was seen or known at that time to the defendant's said servant or agent, in charge or control of defendant's said train, but notwithstanding said knowledge on the part of defendant's said servant or agent, the defendant's said servant or agent in charge or control of defendant's said train, negligently permitted the same to run upon or against this plaintiff, thereby causing, proximately his injuries and damages, as set forth in the complaint."
The affirmative charge should not have been given. McMillan v. Aiken, 205 Ala. 35, 88 So. 135. Plaintiff as a witness testified that, during the whole time he was putting sheets of galvanized iron on the spool, he was in close proximity to said track and cars and was in the "danger zone"; that he had his back to the approaching train. The evidence further showed that the "lookout" on front of the train as it proceeded was looking ahead; that the train could have been stopped within a short distance (20 feet), and that while plaintiff was so situated (in the danger zone) the train proceeded a long distance; that there was a slight curve, but not sufficient to prevent one working around the tipple from seeing a train approaching several hundred feet away. The track was straight about 300 feet before reaching the curve. Such was the case dealt with and held a question for the jury in L. N. R. Co. v. Morris,179 Ala. 239, 245, 60 So. 933; S. S. S. I. Co. v. Brooks,204 Ala. 674, 87 So. 82; Holmes v. B'ham Sou. R. Co.,140 Ala. 208, 37 So. 338; Woodward Iron Co. v. Thompson, supra.
Refused charge, which we denominate A, was abstract. Plaintiff testified that he threw the four pieces of sheet iron on the track and proceeded to the spool to cover it, remaining all the while within the zone of danger when he was executing the master's order to "cover the spool," and, while covering the same, was injured.
There was no reversible error in not allowing the witness Shaddix to answer the question: "State, if you know, whether or not Will Gales is dead," for the reason that the witness was later permitted to state that he did not know whether Gales was "dead or not." There was no error in permitting plaintiff's question to Dr. Ward: "Doctor, which is more likely or which recovers more easily from an injury, an old negro man 60 years old or a young negro," and answer: "Why, a young man would recover much quicker, of course." The evidence showed the plaintiff to have been 60 years of age at the time of his injury, and the matter inquired about was such as an expert may testify, and the doctor had theretofore qualified as an expert.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and GARDNER, JJ., concur.
On Rehearing.