As the plaintiff (appellee here) was riding on the front end of the leading car of a “trip” of several ore cars which were being let doAvn the incline leading from a tipple to the month of a mine, there was a jerk or halting of the cars, when, as stated by one of the witnésses, “the cars got to the end of the slack” of the cable by which they were connected with the hoisting engine above, and the plaintiff ivas thrown in front of the car on which he was riding, and ivas injured by one or more of the cars running over him. Different charges of negligence were made in the counts of the complaint upon which the judgment must rest.
The original complaint contained seven counts, and count 8 was added by amendment. The minute entry recites' that “by leave of the court plaintiff amends the complaint by separate paper this day filed by striking-out counts 1, 2, 4, 6, and 7.” Though that separate paper, as it is set out in the record, purports tó amend the complaint by withdrawing only counts 1, 4, 6 and 7, yet the recital of the minute entry sIloavs plainly that the court understood that count 2 Avas AvithdraAvn, and as the evidence as set out in the bill of exceptions does not indicate that the plaintiff in the trial relied at all on that count, and as no ruling made in the course of the trial indicates that the charge of negligence’ made in that count Avas submitted for the consideration of the jury, the record must be regarded as shoAving the elimination of that count before the case Avent to the jury. This being true, the defendant cannot complain of the overruling of the demurrer to a count upon Avhich the recitals of the court’s minute entry, read in the light of Avliat is disclosed by the bill of exceptions, shows that its judgment in favor of the plaintiff could not have been based. As the general affirmative charge in favor of fhe defendant Avas given as to count 5, the result is *641to leave for consideration the action of the court with reference to counts 3 and 8.
It is urged in argument by the counsel for the appellant that the third count of the complaint as it was amended was subject to demurrer on the ground suggesting its failure to set out with sufficient certainty the place where the injury was claimed to have been sustained. That count alleges the capacity in which the plaintiff was serving the defendant as its employee at the time he was hurt, and attributes the injury to the negligence of a named employee of the defendant, to Avhose orders or directions the plaintiff Avas bound to conform, in giving a described order to which the plaintiff conformed. It was not incumbent upon the plaintiff to specify the exact location of the occurrence complained of, as the place where it happened was not a material feature of the breach of duty complained of.— Central of Georgia Railway Co. v. Thomas, 1 Ala. App. 267, 55 South. 443; Birmingham Ry., Light & Power Co. v. Lide, 58 South. 990; Mobile & Ohio R. R. Co. v. Thomas, 42 Ala. 672. The other'ground of demurrer to that count Avhich is relied on in argument amounts to a suggestion that a quoted expression in the plaintiff’s pleading is meaningless. This ground of demurrer Avas not applicable to the count as it was amended, as the expression as it Avas set out in the demurrer Avas not contained in the amended count. The suggestions of error in the ruling on the demurrer to that count cannot be sustained.
The eighth count attributed the injury complained of to the negligence of a person in the service or employment of the defendant, “namely, Mr. J. J. Hewell,” Avho had superintendence intrusted to him, Avhile in the exercise of such superintendence, in that said superintendent, knowing that the plaintiff was in a place of dan*642ger on the track in front of a trip óf cars, negligently failed to give the proper signal or to do any other necessary and proper act to prevent injury to the plaintiff, but negligently permitted a portion of said trip to run over or upon plaintiff, inflicting the injuries complained of. There was evidence tending to prove that one J. J. Harrell had such superintendence as was alleged, that he was near by in the exercise of such superintndence when the plaintiff fell from the car, and that he got to the plaintiff before the car ran over him. The evidence as to the circumstances and surroundings of the occurrence was such that the jury might have inferred that the injury to the plaintiff could have been averted if Harrell had promptly signalled to the person in charge of the hoisting engine to wind up the cable, so as to keep the cars from running over the plaintiff, and that he was negligent in failing to give such signal. Possibly the proper names “Hewell” and “Harrell” might be regared as having substantially the same sound. If so, then it could not be said that there was a lack of any evidence to sustain the averments of count 8.
In the third count of the complaint the plaintiff attributes his in j mies to his conforming to an alleged negligent order given by a coemployee, “to wit, Mr. Hewell,” to whose orders he was bound to conform. The only evidence by which this count ivas sought to be sustained was as to the plaintiff complying with orders given to him by a Mr. Harrell. We feel constrained to hold that there Avas a fatal variance betAveen the averment, and the proof in the matter of the name of the person Avhose orders are claimed to have been followed, and that because of such variance it was error to refuse to give Avritten charge -4 requested by the .defendant.— Tennessee Coal, Iron & R. R. Co. v. George, 161 Ala. 421, 49 South. 681. Plainly the names “Heivell” and “Har*643rell” are not the same nor of the same sound. — Nutt v. State, 63 Ala. 180; Merlette v. State, 100 Ala. 42, 14 South. 562; Leath v. State, 132 Ala. 26, 31 South. 108; 29 Cyc. 276.
Reversed and remanded.