* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 696, n. 7; Commerce, 12CJ, p. 44, n. 10, 11; Master and Servant, 39CJ, p. 1183, n. 86; Trial, 38Cyc, p. 1363, n. 86; As to defense of assumption of risk under Federal Employers' Liability Act, see annotation in 47 L.R.A. (N.S.) 62; L.R.A. 1915C, 69; 12 A.L.R. 701; 36 A.L.R. 918; 18 R.C.L. 830; 3 R.C.L. Supp. 856; 4 R.C.L. Supp. 1212; 5 R.C.L. Supp. 1004; 6 R.C.L. Supp. 1089. The appellant, J.W. Watkins, instituted this suit in the circuit court of Scott county against the Gulf, Mobile Northern Railroad Company, and the Jackson Eastern Railway Company, seeking to recover damages on account of personal injuries alleged to have been sustained by him while employed by said railroads as a member of the bridge gang. The declaration alleged that a motor car and push car were used by members of the bridge crew in going to and from places on the railroad line where they were engaged in repairing bridges, the push car being used as a trailer behind the motor car; that the push car was in a defective and dangerous condition in that its "axles were bent and out of line and whenever the wheels turned, they would wabble;" that the motor car was likewise in an unsafe condition; that on account of said condition the motor car and push car had several times run off the track and wrecked; and that this dangerous and defective condition of these cars was known to appellee, or could have been known by the exercise of ordinary care.
It was further averred that appellees' railroad track was in a dangerous and defective condition on account of the fact that the rails were laid too far apart, and that the appellees knew of this condition, or could have known it by the exercise of ordinary case. It was further averred that, on account of this dangerous and defective condition of these cars and railroad track, the push car on which appellant was riding to his work was wrecked, *Page 782 thereby resulting in serious injury to him for which he sued. To his declaration a plea of the general issue and a special plea invoking the doctrine of assumption of risk were filed. No replication was filed to this special plea, but issue was informally joined thereon.
Appellant offered testimony tending to establish that the push car and the motor car and the track were defective and dangerous in the particulars alleged in the declaration. Appellant testified that he was employed as a member of the bridge crew, and it was necessary for him to ride to and from his work on these cars; that he had been engaged in this work for several months; that the axle of the push car was bent and the wheels wabbled; that this dangerous and defective condition of these cars had continued for several months; that, on account of this condition, the cars had been wrecked several times; and that he knew of this dangerous and defective condition for a long time prior to his injury.
On cross-examination of appellant's witnesses, it was developed that the appellees were engaged in interstate commerce, and that appellant was likewise engagd at the time of his injury, thus bringing the case within the provisions of the Federal Employers' Liability Act ([45 U.S.C.A., sections 51-59] U.S. Compiled Statutes, sections 8657-8665), under which the doctrine of assumption of risk applies. At the conclusion of appellant's evidence, the defendants filed a motion to exclude the evidence and to grant a peremptory instruction in their favor. After the argument of this motion, but before the court had passed upon it, the appellant requested that the case be reopened for the introduction of further testimony, and, over the objection of the defendants, this request was granted. Thereupon the appellant was again called as a witness, and he testified that, two or three days before the wreck in which he was injured, he complained to the foreman of the bridge crew in regard to the defective condition of the cars on which he was required to ride, and *Page 783 also in regard to the defective condition of the track, and that he then informed this foreman that, on account of the danger to which he was exposed, he would have to quit his work, unless these conditions were remedied; and he further testified that the foreman promised to have these defects remedied, and thereby he was induced to remain in the employment of the appellees. When this testimony in reference to the complaint to the foreman and the promise to repair the defects was offered, the defendants objected on the ground that there was nothing in the declaration to support any such testimony. This objection was overruled, and the testimony admitted. At the conclusion of this testimony, the defendants renewed their motion for a peremptory instruction and this motion was sustained, and from the judgment entered in pursuance of the peremptory instruction, this appeal was prosecuted.
When the appellant first rested his case, the defendants were undoubtedly entitled to a directed verdict, as there was nothing in the proof to suspend the application of the doctrine of assumption of risk. It was within the discretion of the court to permit the reopening of the case for the introduction of further testimony. When the appellant secured a reopening of the case and then sought to avoid the effect of the doctrine of assumed risk by offering testimony that he had complained to the superintendent of the work in regard to the defective and dangerous condition of the cars, and that this superintendent had induced him to continue in the employment by promising to repair the defects, this testimony was not objected to on the ground that the fact that such complaints and promise to repair had been made was not set up by way of replication to the special plea of assumption of risk, but it was objected to on the ground that "there is nothing in the declaration to support any such testimony."
The appellees contend that since, under the appellant's own proof, as it stood at that stage of the trial, *Page 784 it appears that appellant had assumed the risk of the defective conditions under which he was required to work, testimony in avoidance of the doctrine of assumption of risk was not admissible, unless the facts in avoidance thereof were set forth in the declaration, and, therefore, that the ground of the objection was properly assigned, and the objection to this testimony should have been sustained.
Conceding, for the purpose of this decision, the correctness of this contention of appellees, it does not follow that, for that reason, the action of the court below in granting the peremptory instruction was correct. If the court below had sustained the objection to this testimony on the ground that there were no averments in the declaration to support it, the appellant would have been entitled, under such proper conditions as the court might have imposed, to amend the pleadings so as to render it admissible. But the court overruled the objection and admitted the testimony, and the appellant was not called upon to amend his pleadings. With this testimony in the record, the peremptory instruction should have been refused and the cause submitted to the jury, and a party in whose favor an erroneous judgment has been rendered cannot sustain it upon the ground that the judgment would have been correct if the court had not erroneously admitted testimony when, if the testimony had been excluded, the opposite party would have had the right to render such testimony admissible by amending the pleadings.
We do not think the testimony in this case shows that the danger was so obvious, immediate, and constant that a reasonably prudent person would not have incurred it pending the carrying out of the promise to repair, or that a definite and fixed time was agreed upon within which the repairs were to be made, or that more than a reasonable time for making the repairs had elapsed before the injury to appellant, and, under the evidence in *Page 785 the record, we are of the opinion that it was error to grant the peremptory instruction requested by the appellees.
The judgment of the court below will therefore be reversed, and the cause remanded.
Reversed and remanded.