Each count of the complaint states a cause of action, and while good pleading might suggest that they could have been more specific in charging that the plaintiff was engaged in and about the ice plant, or in the business connected therewith, when injured, they were not subject to the demurrer interposed. The first and second grounds are most general, while the third is inapt.
There was no error in not excluding the answer of the plaintiff as a witness that there was no dog on the windlass. He had been asked to describe the accident to the jury, and in doing so had to describe the machine and how it worked, and the statement that there was no dog on it was simply descriptive of the machine, and it did not require an expert to tell whether or not a dog was on the windlass. The witness did not say that the absence of the dog constituted a defect.
The trial court will not be put in error for permitting the plaintiff to testify that it was his duty to obey the directions of Joe Caravella. The second count is under the third subdivision of the Employers' Liability Act, and not the second, as appellant's counsel seems to think, judging from his argument. Moreover, the witness had several times previously testified without objection that Joe Caravella was his boss "and he was under his direction and had to do what he said do; that he was subject to his orders." While the question objected to sought a mere repetition of what the witness had previously proved, it went to the very gist of the second count of the complaint.
The appellant cannot complain that it was not permitted to cross-examine the plaintiff as to his reasons for making the affidavit that he was over 21 years of age. He had testified that he was under 21, and the affidavit made by him that he was over 21 was introduced and established a contradiction, and it was up to the plaintiff, and not the defendant, to explain or reconcile the contradiction. Certainly the defendant cannot complain that it was not permitted to weaken the force and effect of the impeachment of the plaintiff.
The trial court cannot be reversed for refusing the defendant's requested charge 3, intended as the general charge as to count 1. It was bad in form, even though the defendant may have been entitled to the general charge as to count 1, if properly framed. L. N. R. R. Co. v. Sandlin, 125 Ala. 593,28 So. 40; Bessemer Co. v. Tillman, 139 Ala. 464, 36 So. 40; Kress v. Lawrence, 158 Ala. 656, 47 So. 574.
If the jury believed the plaintiff's evidence, they were authorized to find a verdict for him under the second count, and while he was contradicted by Joe and Tony Caravella, the jury saw and heard the witnesses, and under the rule laid down in Cobb v. Malone, 92 Ala. 630, 9 So. 738, which has often been followed, we will not disturb the action of the trial court in refusing the motion for a new trial upon the ground that the verdict was contrary to the weight of the evidence. The act of 1915 (page 722) does not change the rule declared in Cobb v. Malone, supra, where the trial was had upon evidence ore tenus or partly so. Hatfield v. Riley, 74 So. 380.1 Nor will we reverse the trial court for refusing the motion because of newly discovered evidence, as it was, in effect, merely cumulative. All of the affidavits except that of Zeb Thompson, set up that the "affiants" had operated the windlass, and it was harmless and simple, and could be operated by a boy, etc. This fact was shown by the defendant's witness Rafe Caravella. As to the affidavit of Zeb Thompson, it did not necessarily contradict the plaintiff. He did not say that he had never operated the pulling machine; he said he had "never been instructed or shown how to draw ice." On the other hand, if said affidavit tended to contradict the defendant and show that he was familiar with the operation of the windlass, this was merely cumulative *Page 547 of the testimony of the witness Tony Caravella, who stated, "Plaintiff saw the ice drawn many times when he was there."
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SAYRE, and GARDNER, JJ., concur.
1 199 Ala. 388.