The case was put on rehearing by the Court that the pleading be re-examined as affecting the verdict against the defendant master, and the discharge of Duncan, the conductor, and on the action of the jury affecting the ruling on the motion for a new trial. *Page 602
In F. W. Woolworth Co., Inc., v. Erickson, 221 Ala. 5,127 So. 534, is the observation [page 537]:
"Upon consideration of the motion for a new trial it is urged that the acquittal of defendant Sprague entitles appellant to a new trial upon the theory the verdict was inconsistent, citing Walker v. St. Louis-San Francisco R. Co., 214 Ala. 492,108 So. 388.
"The proof shows that the oiling and cleaning of the floor was done by a porter and that it was the duty of the floorwalker to see that this work was properly done. It is manifest therefore that liability may be rested upon appellant on account of the negligence of employees other than Sprague, the manager, and that this contention is without merit."
Such is the case here. This for the reason that liability may be rested upon appellant, Louisville Nashville Railroad Company, on account of the negligence of an employe other than Duncan, the conductor, and there was an appropriate count on which the verdict could be rested and judgment rendered.
We find no cause for granting the rehearing.
Opinion extended, application for rehearing overruled.
ANDERSON, C. J., and THOMAS, BROWN, and KNIGHT, JJ., concur.