concurs with the writer in the conclu-' sion that, if the averments of pleas 1 and A be true, two considerations stand in the way of plaintiff’s recovery, namely: (1) The fundamental rule of law and morality that no right can be based upon fraud; (2) but for his alleged fraud plaintiff would never have been exposed to danger from negligence on the part of defendant’s employees. In the consideration of the case down to this point Justice Evans took no part.
Motion is made to strike the bill of exceptions as not having been signed within the time provided by statute. The cause was tried on November 11, 1908. Motion for a new trial was made within 30 days and continued regularly until March 1, 1909, when it was overruled. The bill of exceptions was presented and filed by the presiding judge on April 15, 1909. So far as the bill seeks a review of the action of the court in overruling the motion, it must stand. In the motion a number of rulings, to which exceptions were reserved on the trial, were assigned as grounds for a new trial. The alleged errors of the court in these several rulings are now assigned as reasons why there was error in overruling the motion for a new trial. Under the authorities, these alleged errors must- be considered for the purpose of reviewing the action of the court in overruling the motion for a new trial.—Ala. Midland v. Brown, 129 Ala. 282, 29 South. 548; Herzberg v. Riddle, in MS. The practice here indicated was disapproved by Dowdell, C. J., in Central of Ga. Rwy. v. Ashley, 160 Ala. 580, 49 South. 388. But that case went off without a decision on the point. The motion to strike the bill of exceptions is overruled. It is said that the coart should have given a charge in language as follows: “If *590you believe from the evidence that it was dangerous for plaintiff to perform the service about which he was engaged when injured, and that the danger of being hurt m the manner he received his injury was open and obvious to the plaintiff and was an ordinary risk of his service, your verdict must be for the defendant.” Plaintiff claimed in his complaint, among other things, that his injury had been caused by the negligence of defendant’s superintendent in providing or directing the machine to be unloaded by the use of skids not sufficiently strong for the work. Some danger may be said to be incident to every service of that description, and it may be obvious and unavoidable. Of such danger the employee, in the ordinary case assumes the risk. But he does not assume the risk of the negligence of a superintendent whose duty it is to care for the safety of his subordinate co-employee. The charge, however, may be read as asserting, the contrary. Nor did the charge postulate the facts pleaded in plea “B”. That plea, the only one in which the defense of plaintiff’s assumption of risk was undertaken, averred plaintiff’s knowledge of the danger or defect, and seems to have been aptly pleaded to counts 2 and 3 only. The charge does not deal with the defective insufficiency of the skids, but with the danger of being hurt in the manner in which plaintiff received his injury. .That danger the jury may have attributed to the negligence of the superintendent, and the risk of that danger, as we have said, was not assumed by the plaintiff. We think the charge was refused without prejudicial error.
Plaintiff was allowed to ask a witness whether the skids which were being used to unload the piece of machinery were heavy enough for that purpose, what was the matter with the timber constituting the skids, whether or not the timber which was broken was large *591enough for the piece of machinery to be unloaded on, and, finally, how large a timber ought to have been used to unload the machinery with safety. These rulings of the trial court are to be justified, not on. the ground that the witness was an expert or that the matters inquired about required expert knowledge, as appellant assumes to have been the reason controlling the action of the court, but on the ground that the witness was testifying to collective facts. There have been many cases allowing questions of this sort. Thus in Ala. Min. R. R. Co. v. Jones, 114 Ala. 519, 21 South. 507, 62 Am. St. Rep. 121, a Avitness was permitted to testify that tbe place where the injury occurred was a dangerous place for the car to stop. That seems to be an extreme case. In Eureka Co. v. Bass, 81 Ala. 200, 8 South. 216, 60 Am. Rep. 152, a Avitness Avas allowed to testify that certain boles, which had been charged with dynamite and made ready for explosion, were “properly charged.” Other illustrations are to be found in McVay v. State, 100 Ala. 110, 14 South. 862; Rollings v. State, 136 Ala. 126, 34 South 349; E. T. V. & G. R. R. Co. v. Watson, 90 Ala. 41, 7 South. 813. The Avitness must not, of course, be permitted to decide the issue in controversy.—L. & N. R. R. Co. v. Landers, 135 Ala. 504, 33 South. 482; Eureka Co. v. Bass, supra. There was no error in allowing the questions indicated.
The court beloAv -allowed the plaintiff to testify that he had never before helped to unload a machine out of a car. The distinct tendency of this evidence was to impute Avrongdoing to the defendant or its superintendent in failing to adapt and accommodate the degree of care exercised for plaintiff to his immaturity and inexperience. No such case Avas declared upon. Count 1 did not reach it. Where the danger of the service is not concealed, but is open to a person of ordinary experi*592ence and observation, the master or his superintendent owes no duty to warn or instruct unless the servant is known to be inexperienced; that is, the master or his superintendent must know that the servant by reason of inexperience or immaturity is exposed to an abnormal hazard over and above those which he is presumed to contemplate as incidents of the employment for which he is engaged. The duty in the case put does not arise from the mere relation of master and servant— such duties as are alleged in the first count to have been breached — but from that relation plus a status of the servant which the master is not required to know. If it is to be proved, it must be alleged.—Louisville & Nashville v. Wilson, 162 Ala. 588, 50 South. 188; Republic Iron & Steel Co. v. Williams, post, 612, 53 South. 76. In this there was error, and for it a new trial should have been granted.
Reversed and remanded.
Dowdell, C. and Anderson, McClellan, Mayfield, and Evans, JJ., concur.