Action by employe against the employer for personal injuries suffered. Count 1 was submitted to the j ury. The court, in overruling the demurrers to this count, followed the ruling made in Alabama Steel & Wire Co. v. Griffin, 149 Ala. 423, 42 South. 1034, with respect to counts 5 and 6 therein. Counsel for appellee strongly assail the soundness of the Griffin Case, Wherein it was held that, to bring a cause of action within the fifth subdivision of the employer’s liability act (Code, § 3910), the injured servant must have been engaged when injured, in or about the operation of a railway.
In expression of the writer’s view only: Pear v. Cedar Creek Mill Co., 156 Ala. 263, 266, 47 South. 110. was the first occasion requiring the writer’s consideration of the proposition in the Girffin Case; and his views, in opposition to the soundness of the Griffin Case, were there set down without elaboration, though after a full and careful consideration. The announcement made, as indicated, in Giffin’s Case, is, in my opinion, such a radical departure from the statute, that I am not yet willing to accept it as a settled interpretation of the statute in the respect involved.
However, count 1 does not present - the question. Therein it affirmatively appears that plaintiff was engaged, when injured, in removing large chunks of iron, the result of a “boil” at a furnace, by means of a cable and a locomotive on a railway. He was engaged, when injured, in or about the operation of a railway. The de*435innrrer to count 1 was properly overruled. In brief of appellant’s counsel it is conceded — and tbe concession is the fact — that the evidence on the material issues in the cause was in conflict. Obviously the affirmative charge was correctly refused to defendant.
The only other assignments insisted on in brief are those predicated on the refusal of charges 2, 5, 7, and 11, requested by the defendant, and on the denial of a new trial.
Charge 2 sought to preclude a recovery on the first count, on the theory that plaintiff was not, when injured, engaged in or about the operation of a railway. The evidence tended to support the averments of the count in this particular, and hence the charge was well refused.
Charge 3 invaded the jury’s province. It also assumed to declare common knowledge in respect of a matter of which there could not be, nor was, common knowledge.
Charge 5 was well refused because, if not for other reasons, it failed to hypothesize that plaintiff’s negligence prosimately contributed to his injury.
Charge 7 was misleading, if not otherwise faulty. While plaintiff may have been a “rigger,” and was injured while so engaged, yet the performance of his duties as a rigger, in this instance, comprehended the employment of a locomotive on a railway, as affording the motive power to remove the chunks of iron produced by the “boil” at the furnace.
Charge 11 stated no legal proposition, was argumentative, and pretermitted in hypothesis that the “disputed fact” was material. It probably had other infirmities.
The motion for a new trial, on the ground of newly discovered evidence, could not have been sustained. Not *436only was there an entire absence of evidence of requisite diligence on the defendant’s behalf in the premises, but from the affidavit of defendant’s attorney it appears that the diligence exercised was “since the verdict was rendered.”—K. C., M. & B. R. R. Co. v. Phillips, 98 Ala. 159, 13 South. 65; Simpson v. Golden, 114 Ala. 336, 21 South. 990; among others.
The other ground of the motion, which, it is contended, the court erroneously overruled, rested on the excessiveness of the verdict, viz., $3,000. The evidence bearing on the extent of the injury suffered was conflicting. It was reasonably open to the jury to find that plaintiff’s foot, ankle, and leg below the knee were permanently injured, that -his ankle was stiff, that he endured for a long time severe physical pain, that a pail of his foot has ever since the injury been abnormally cold, indicating impaired circulation, that he could not stoop down on that ankle, that he suffers from soreness after a day’s work, and that the limb is marked with wounds.- The defendant’s physician, who attended plaintiff, testified to a very much less serious state of injury than did the plaintiff and his witnesses. In addition to the testimony indicated, the jury had a view of the leg, ankle and foot. It being open to the jury to reasonably.find the extent of the injury to have been as serious, permanent, and painful as plaintiff’s testimony tended to show, and since the trial court declined to disturb the verdict on the ground of excessiveness, we are not so convinced of the unreasonableness of the sum ascertained by the jury as to warrant us in pronouncing-erroneous the overruling of the motion for a new trial on the ground indicated.
‘The, evidence bearing on the material issues in the case was, as before stated, conflicting. If the evidence in plaintiff’s favor was credited by the jury, the verdict *437could not be said to ba,ve been contrary to the weight of the evidence. The issues were for the jury to decide, and to them it was properly committed to determine the truth from the evidence.
There is no merit in the errors assigned and argued, and the judgment must be affirmed.
Affirmed.
Simpson, Anderson, and Mayfield, JJ., concur.