The motion to strike the bill of exceptions on the stated ground, namely, that the order of extension for signing same, made by the presiding judge in vacation, though within the time of a previous order to the same effect, was after an appeal had been taken to this court, is without merit.—Capital City Insurance Co. v. Cofield, 131 Ala. 198, 31 South. 37.
The complaint originally filed contained three counts; but the first count was subsequently withdrawn, and no questions therefore arise as to this count. The judgment entry recites that the second count was amended, and as amended was demurred to and the demurrer overruled. The record before us does not show in what the amendment consisted either in the judgment entry or by setting forth the amendment or count as amended in the transcript. The complaint as originally filed containing the three counts is set out in the. transcript and only this. In this state of the record, we cannot review the court’s action in its ruling on the demurrer to the second count as amended.
It is insisted in argument that the court should have sustained the ground of demurrer designated “B” to the third count, and that it erred in overruling this ground of demurrer. The mentioned ground of demurrer was inapt and in the face of the averments of the count. The count averred that plaintiff’s duty in the line of his *418employment was to assist in unloading the barrel from the car, and that in so doing he was at the time obeying the order of his superior to which he was bound to conform.
After the trial had been entered upon and the plaintiff had introduced his evidence and rested his case, the defendant offered to file additional pleas, which the court on the objection of the plaintiff refused to allow. This was a matter addressed to the discretion of the trial court, and its ruling thereon is not revisable on appeal.—Leader et al. v. Mattingly, 140 Ala. 444-448, 37 South. 270.
The complaint is predicated on subdivision 3 of the employer’s liability statute (section 3910, Code 1907). Plea 10, in so far as it sought to set up the defense of assumption of risk, was no answer to the complaint.—Woodward Iron Co. v. Andrews, 114 Ala. 243-257, 21 South. 440. In so far as it denied a duty resting upon the plaintiff to conform to the order of Royer, this was available under the plea of the general issue. What we have said of plea 10 as to assumption of risk is applicable to plea 13.
Written charge 4 requested by the defendant was properly refused. The instruction to the jury sought by this charge is directly opposed to the statute. — Section 4056, Code 1907.
We have considered every question insisted on in argument by counsel for' appellant, and, there being no> reversible error, the judgment will be affirmed.
Affirmed.
Anderson, Sayre, and Evans, JJ., concur.