#### Southern Ry. Co. *v.*McGowan.

*Action for Damages for Injury to Employe.*

(Decided March 2, 1907.

43 So. Rep. 478.)

1. *Master and Servant; Injury to Servant; Action; Jury*Question.— It was a question for the jury to determine whether the handle of a' car broke from its insufficiency to perform the service for wliieh it was' used "or from'a latent defect unknown to''the • master. ■ • ' ■ •'

*2. Same.*— If the jury find that the breaking of the handle- of a car ■ • was‘due to its insufficiency to perform the service, for which • it is used, it is still-a question for them to determine.under the evidence whether the insufficiency of the handle was known to the.defendant so that he .assumed the risk.

3. *Action; Complaint; Single Cause..*— A .count ascribing'the injuries of plaintiff to the negligence of the .'defendant’s superintendent in failing to keep the handle of the hand car in proper order and negligent!y permitting plaintiff 'to use it while in a defective condition is not subject to demurrer as setting up two separate causes of action.

*A:" Master and Servcvnt; Injury to Servant;-Complaint.*— The'Count ' was not subject to demurrer .for failing to-show that the superintendent knew, or-was negligent in' not knowing of .the de- ■ .. fective condition of .the appliance used, or for not showing that th.e alleged defective, condition of the appliances used arose from defendant’s negligence, or. that it did not show that the car was in a defective condition.

5. *Same; Pleading; Contributory negligence.*— A plea of contributory negligence for failing to choose a safe place' in which to work but which does hot allege that a sáfe'place was known or apparent to plaintiff, was bad on demurrer.' • .

6. *Same; Assumption of Rislc.*— A plea of assumption of -risk asserting that plaintiff was aware of the defect, that the defect was ■ obvious, and that if plaintiff remained in defendant’s service without requesting the defendant to repair the same he assumed the risk, but failed to state that plaintiff knew or appreciated the risk arising from such defect, was bad on demurrer.

*’!. Same; Knowledge of Defects by Master.*— If the master knows ef the defect in his machinery, a servant does not assume *441the risk connected therewith by failing, to give the master notice of the same, although he may not know that the master knew of the defect.

.'8. *Same; Evidence; Admissibility.*— It was competent to' permit plaintiff to prove that hándles made of other wood could as easily have been put in as the one used' since the failure of the defendant to get a better handle thán thé one used when it was ás convenient to do so was a circumstance to be considered by the jury. ' ' ' ■

•9. *Same; Evidence; Rules of Work.*— Where the plaintiff was injured by falling from a hand car while riding' backward, and there was conflict in the evidence as to the existence of a rule forbidding employes to ^ride backward while working it was competent to show' that others Bad been riding backward as tending 'to show non-existence of the fule.-

'10. *Apppeal;' Review; Presitmption.*— Where5 the bill of exceptions shows'that leave was granted plaintiff to amehd his complaint so as to claim damages for a rupture, though the record does not show that the pleadings were is fact so amendéd,- it will be presumed that the "amendment' was" made to sustain the ' action of the trial court in admitting evidence' on' this point,

'll. *Evidence ;'Admissibility ; Conclusion.*— Where plaintiff was injured by falling from a hand car while' riding "backward the court properly sustained an ob'jectidñ to’the" question’’whether "of not' he would have been injufe'd had he occdpied sdme other position, since the answer would háve been ’a mere cdnclusion..

.12. *Master and Serva/nt; Injuries to Servant; Instrudtibns.*— The " 'plaintiff5 was injured by fálliñg'from á'hand'car while'riding ' backward, and the court'instructed the jury’ tháfr-'if it was not more dangerous for' plaintiff to oc'cúp'y the position he was occupying when he fell, except by reason of defendant’s negligence of a'defect in the Handle of the" ear,' then the "fact that ' he did' occupy 'that position would hot bar "a recovery unless the plaintiff knew of the'danger. 1-Ield, proper.

"13. *'Same; Duty’of Master'; Jury Question.*— The' court- properly charged the jury that it was for them 'to determiné‘whether the defendant Was negligent in'"fáiiihg tb remedy thé defect-' in the handle of the car. " ’ ' ' ’ • ’ '

14.' *Same; Assumption Of Ris1c.*— Ah employe assumés'only5 the risks 1 incident to his employment 'and is not bound to give the master notice of defective appliances" where the master -knew of such defect.' ' ' •

'.15. *Damages; Per'sonaVlnjnry.*— In ah action for personal injury the plaintiff, if entitled to recover at all, cán" recover such damages ás a 'jury think" proper under the evidence not to exceed the. amount claimed.

*44216. *Master and Servant;. Injury to ,Servant; Instructions; Contributory 'Negligence.*— The court propertly instructed the jury that if plaintiff could reasonably have used a less dangerous way of working the car, th.is would not bar his right of recovery, unless it appeared .that he knew,.he was using the more dangerous way and .that such use was negligent and. that this negligence was the proximate cause of his injury. •

17. *Same; Duty of Master.*— The court properly charged that it was the duty of defendant to use reasonable prudence in selecting a handle for the car and that plaintiff -had the right to assume that the hapdle .furnished was reasonable safe, unless he knew jt was not, and he was under po duty to examine the handle.

18. *Same; Instructions General.*— The court, properly instructed the jury that if the-defective condition of the handle of the car was due to the negligence of the defendant and defendant negligently omitted to ,1'emedy the same the jury should find for . the plaintiff, unless plaintiff own negligence contributed to his injuries. . ' . ¡

19.. *Same.*— The court properly refused to instruct the jury that the plaintiff could not recover if he knew the kind of wood used and its weakness, whether he knew it was dangerous to use such handle or not.

20. *Same.*— A, charge asserting that there was no implied warranty op the part of .the master that the tools or appliances furnished a ber-vant were sound and fit for use was properly refused. .

21.. *Trial; Instructions; Proximate Cause.*— A charge is invasive of . the province of the- jury which asserts that the jury could not find. that, the defect in the handle was the proximate cause of the injury.

22. *Same; Assumption of Rislc.*— Since the- knowledge, of the defect may not have apprised, the plaintiff that it was dangerous to use the handle the. court properly refused to instruct the jury that ff the conditions of the handle was open tq ordinary observation plaintiff, could not recover.

23. *Same; Misleading: Instructions.-r-A-*charge asserting that the defendant is not bound to see that the. handle of the car. was free from such defect was properly-refused, as tending to mislead • • .the. jury- to. conclude .that there was no .duty upon defendant to see that the..handle was not defective although its defective condition may have been apparent in the examination.

24. *Master -.and-,Servant; Injury to Servant; A,etion;*Instructions.— . , 'Where the complaint, alleged that, the hnadle of the car was ■ weak and-insufficient,-that it. was. made of cedar,, that it was-*443split, that it was hollow, and that it was .unsafe, the court improperly instructed the jury -that the plaintiff could not recover if it was shown that 'the handle was insufficient and weak, as the charge relieved the plaintiff of proving other defects particularized and averred.

Apeal from' Jackson Circuit Court.

Heard' before Hon. W. W. Haralson.

Action by John McGowan against the Southern Railway Company. ' From a judgment for plaintiff, defendant appeals.

Reversed and remahded on rehearing.

This cause was tried on the' amended second count, which is as follows: “Plaintiff claims of the defendant, the Southern Railway Coinpany, a corporation, the sum of $1,990 as damages for the injury inflicted upon plaintiff, as stated i'n this' complaint, for that, at the time plaintiff was' injured, defendant was operating a railroad in this county, and plaintiff at said time was an employe in the service of the defendant in the said business; that plaintiff, in the performance of' his'duties as such employe, was assisting in'propelling a hand car on defendant’s, railroad on or about the 25th of February, near Facklers, in Jackson county; that‘while so: engaged the handle of said hánd car broke and caused plaintiff to fall in front of said hand car, and that after falling said hand car ran upon him,ánd drágged him some six or eight feet, breaking' one of his' ribs, ' and mashing and bruising and injuring his legj hip, and thigh, causing him greát mental and physical pain and suffering, and also causing him to employ at great expense a physician for the treatment, and to expend large sums of money for medicine, and to lose his time from labor since this occurrence, and by permanently in a measure disabling him from work. And plaintiff avers that the handle of said car was weak and unsafe' for .service, and plaintiff avers that his injuries were, caused by reason of the negligence of Henry Farmer, wh'd was in the service or employment, of the defendant, and' who had, under his said employment, the superintendence of said car and the use'thereof, and also superintendence of plaintiff, and' that whilst in t'he exercise of' such superintendence the said Henry Farmer negligently failed *444to keep the handle of said car in proper order and condition for nse in defendant's service, and negligently allowed the nse of said car by plaintiff in defendant’s service in the said defective condition, to plaintiff’s damages aforesaid.”

Demurrer was interposed to this count: . “Because it joins in one count two separate and distinct causes of .action, arising under section 1749 of the Code of 1896 .lmoAvn as the ‘Employer’s Liability Act.’ (2) It does not shoAV that said Henry Parmer kneAV, or' Avas negligent in not knowing, that said handle of said car was in a, defective condition. (3) It, does not show that said . defective condition arose, from, or had not been discovered or remedied owing to, defendants, negligence or .the negligence of its agent intrusted with the dirty of seeing .that .the same Avas in proper condition. (4) Because it does not show that said car was in a defective condition. (5) Because 'it does not shoAV that said Farmer kneAV that said car Avas in a defective condition. (6) Because it does not show Avliereih said Farmer is negligent.”

To this count, after demurrer overruled, the defendant .filed pleas .0 and D, among others, which are as folÍoAArs: “(C) Plaintiff proximately contributed to the injury and damage complained of by his owm riegli- , gence, in this :■ He Avas holding said lever near the end, and Ávas in front Avith his back turned in. the direction the hand car Avas going, although there was plenty of room on the inside .of.the handle, which Avas a safer place for him to occupy, than that which he did assume, and, had he taken such position, he could not have been injured as alleged. (D) Plaintiff, when said,injury'occurred, was riding in said car in front of handle, with his back turned in the direction the car was going, and had hold of said handle near the end; whereas, "there was .a safer position , he could have occupied in the discharge of his duties, namely, on the inside of or behind said handle, and fronting the Avay said car was going, . .and it was his duty to occupy said last-named position, and by his failure to do so he. proximately. contributed to the damage and injuries complained of.”

*445Demurrers were interposed to C as follows: “(1) It does' not show that plaintiff knew of the safer place. (2) It does not show that plaintiff was negligent in occupying the position alleged in said plea, and holding the handle as alleged.” And to plea D: “It does not show that plaintiff knew of said .alleged safer position, and it fails to show any negligence on the part of the plaintiff.” . ■

Plaintiff filed pleas 4, F, and G, as follows: Plea 4: “Plaintiff, after becoming aware of the existence of said defect, remained in defendant’s service without notifying defendant thereof or requesting defendant to repair the same.” Plea F: “Plaintiff had been working on said hand car for about two months, and knew the condition of said handle, and with such knowledge continued to use such handle without objection or request that the same be repaired.” Plea G: “The condition of said handle is obvious, and, if it Avas in ¡a defective condition, plaintiff assumed the risk attendant upon its use by him.”

Demurrers were interposed to these pleas as follows: To plea 4: “For that said plea fails to shOAV that plaintiff’s act in remaining in defendant’s service as alleged was a negligent act. (2) Said plea fails to show any act of negligence by plaintiff. (3) For aught that appears from said plea, defendant knew of said defects.” To plea F: “(1) It does not show there was any obvious danger in using the handle. (2) It does not show that plaintiff knew of any danger in using said handle. (3) It does not show any act of negligence on plaintiff’s part in using said handle.” To plea G: “Because it does not show that plaintiff acted negligently in using said handle. (2) It does not show that plaintiff had knowledge of any danger in using, said handle. (3) It is not alleged that there was obvious danger.”

The plaintiff filed a replication to plea 3 as follows: “That the defendant already knew of said .defects.” Demurrers Avere interposed to this replication: “For that it does not appear therefrom, that plaintiff was aware that defendant knew of said defects; and for that, it is a departure from the first count of the complaint.” These demurrers being overruled, the defendant re*446joined, :and said that plaintiff remained in the service or employment of'defendant for'an'unreasonable time after he became 'aware that defendant knew of said defect and after defendant had'failed to repair the same: Demurrers were interposed, to rejoinder as follows:' “For aught sho-wii by the rejoinder, the plaintiff continued in defendant’s service at defendant’s instance. Said'rejoinder is irrelevant to any issue raised, as to- airy matter previously pleaded. The fact, if it b'é a fact, that plaintiff' remained in the service of defendant, is no answer to discharge 'defendant of negligence.”

The facts are'sufficiently stated-Ih the opinion.

In his oral charge to thé jury the court' said: “If it was not moré dangerous for plaintiff tó'occupy the position he was occupying when he fell;' except by reason of defendant’s negligence or. a defect In the handle, of the car, then the fact that he did occupy that position would not' bar a' recovery, unless you should find that the plaintiff knew the position lie was occupying when he fell was more dangerous than the one he left. Whether the defendant was negligent, as is' charged in the complaint, or whether there Avas: a defect in the handle, or whether siieh defect or negligence'múde .thé position' occupied by the plaihtiff when, hg was hurt moré dangerous, you must determine from the evidence.” And: ' “The employe, Or the pi'áintiff' in this case, wbuld assume Ordinarily the risk only of .such dangers as are incident 'to his. employment.” And: “If thé section foreman knew of thé defect, if there was a defect, and if the'plaintiff also'knew Of it, he was not bound to give'any notice of it.”' And: “It.is' not necessary fdr plaintiff to prove that the' hollow or split in the handle was thé Cause of the injury.. It is'simply'necessary to show that the handle was ah unsafe timber to''Operate thé car with; that' is, you must be .reasonably’satisfied from the evidence that it wás unsafe for the 'service.” 'And: “It is"not necessary to a recovery under thé first count to prove that all the defects' named’ therein caused thé' injury.”' And:- “If'you find 'that plaintiff is entitled to'recover, then he is entitled to recover such an 'amount' as under tíre evidence, you think proper' — such ah ámount as you ih your 'discretion' see fit — not exceeding t'hé amount *447■claimed in the complaint.” And in this connection the •court said, if plaintiff was entitled to recover, he should have reasonable compensation for pain and suffering and loss of time and' physical injury sustained by him, ■caused by defendant’s negligence, and that the amount of damages lay in the discretion of the jury, which should not be more than fair and reasonable compensation for plaintiff’s sufferings and injuries. Exceptions were reserved to all these portions of the' court’s oral ■charge. ■ ' '

At plaintiff’s request the court gave the following written charges:: “ (1) The court charges the jury that, if it appears from the evidence that plaintiff could reasonably have' used- a less dangerous way to work the handle of the lever of the car, this will not of itself bar his recovery. It must' further reasonably appear - from the evidence that the plaintiff knew hé was- using a more dangerous way, that such use of a more dangerous way was negligence, and that'this negligence was the proximate cause of his injuries. (2) The court charges the jury that it was the duty of the defendant, to be reasonably prudent and cautious in selecting- a handle for the lever of the car, and that when the handle Was put in the lever, if plaintiff then and thereafter' used it in his duties under his employment, then plaintiff, in using the handle, liad the right to assume' it was reasonably safe for service, unless'he knew it-'whs not so. (3) The court charges -the-jury that the plaintiff was under no duty to examine the handle to see if it was all right; but he had the right in law'to assume it was fit for service, and could act fipon this assumption’ in Using' it, unless he knew it was nót safe for 'service.'-‘(4) The 'court charges the jury that if they are reasonably satisfied from the evidence that the" plaintiff’s injuries 'were caused, by reason - of the defective condition of the handle of the lever of the car, in that said’handle avUS Aveak' and' insufficient for the service, and that ft" was made of cedar, and if the.jury áre fúíther reasonably satisfied from the evidence that this d'efcetive' Condition had not been remedied, owing to the negligence of the defendant, and that defendant lcneAV of sfich defect, ih a time rea*448sonably sufficient to remedy the same, then they must, find for *the*plaintiff, unless *the*evidence reasonably shows to the jury that the plaintiff’s injuries were the result of his negligence and that his negligence proximately contributed to his injuries.” The defendant requested the court in writing to give the following charges, which were refused: Charges 1, 2 and 3 were the affirmative, charges as to the various counts of the complaint. Other charges: “(4) If you believe from the evidence that the handle Avas weak, and that its weakness is due to the fact that it Avas made of cedar, and that the plaintiff, several months.before the injury, kneAV that it was made of cedar, and continued to work Avith it up to the time of the injury Avithout making any objection to using it, he cannot recover in this case. (5) There is no implied Avarranty on the part of the master or employer that the tools and appliances furnished his-servant are sound and fit for the purpose intended. (6) You cannot find from the evidence in this case that the hollow and split in the piece of handle offered in evidence Avas the proximate cause of the injury. (7) If the condition of the handle Avas open to ordinary observation, plaintiff cannot recover in this case; nor can he recover, if. its condition Avas not open to ordinary observation, unless its defective condition. Avas known to defendant or Farmer, or could have been discovered by them by the use of reasonable and ordinary care, and they failed to use such care. (8) Although plaintiff is not bound or required to inspect or examine the handle, yet if the fact that it was made of cedar and that it was holloAV or split was open to ordinary observation, plaintiff assumed the risk of any injury caused thereby. (9) The defendant was not bound to see that the handle of said car was free from defect or the best in use, and is not chargeable as an insurer of its safety. (10) If you believe from the evidence that the danger, if any, from the use of the handle, was not open to ordinary observation and could not be discovered by Farmer any more readily than by plaintiff, plaintiff cannot recover therefor. (11) If you believe from the evidence that plaintiff’s injurie^ were.caused by reason of the weakness of the handle, and that such weakness arose solely from *449the fact that the handle was made of cedar, then the plaintiff cannot recover. (12) There is no evidence in this case that the split and hollow in the piece of handle produced before the jury was the proximate cause of the injury.”

It is unnecessary to set out the other charges.

Humes & Speaks, for appellant. —

The court- erred in sustaining demurrers to plea 4. — § 3303, Code 1896; 112 Ala. 465; *Goins o. Ala. 8. & W. Go.,*141 Ala. 537; *K. G. M. & B.'R. R. Go. v. Thornhill,*141 Ala. 215. The plea was not subject to any of the demurrers interposed to it and, hence, no infirmity is pointed out.— *Milligan-v. Pollarcl,*112 Ala. 465. The master was not liable if the servant knew of the defect and remained in the service after the lapse of a reasonable time for the defect to be remedied or *removed.*— Stutfs *Case,*105 Ala'.; *L. & N. R. R. Go. v. Boland,*96 Ala. 626; *G. P. R. R. Go. v. Dams,*92 Ala. 300; *G. & W. R. R. Go, v. Bradford,*86 Ala. 574; *Goins v. A. S. é W Go., supra.*If the defect is obvious or suggestive of danger knowledge on the part of the servant would be presumed.— *Sloss, etc.. Go. v. Knowles,*129 Ala. 410; *Sloss Go. v. Mobley,*139 Ala. 425; *B. R. & E. Go-, v. Allen,*99 Ala. 359. On the authorities above cited pleas F and G were not subject to demurrer. The demurrer to the replication to plea 3 .should have been sustained. The replication instituted a departure from the *complaint.*— Na*tional Bank v. Nelson,*139 Ala. 578; *George v. M. & O. R. R. Go.,*94 Ala. 245; *Bridges v. T. G. I. & Go.,*109 Ala. 286. The court’s oral charge was erroneous.— *Gonrad v. Granj,*109 Ala. 130; *M. & O. R. R. Go. v. George, supra.*Charge 1 given for plaintiff was erron*eous.*— B. *R. & E. Go. v. Bynum,'*139 Ala. 389. The 2nd and 3rd charges given for plaintiff were erroneous. *—L. & N. R. R. Go. v. Mitchell,*134 Ala. 261; *Southern Ry. Go. v. Bunt,*131 Ala. 591. The defendant was entitled to the general affirmative charge upon the whole case and upon the several *counts.*— H. *A. & B. R. R. Go. v. Walters,*91 Ala. 443; *Holland v. T. G. I. &■ R. R. Go.,*91 Ala. 452; *L. & N. R. R. Go. v. Banks,*104 Ala. *450516; *8loss (Jo. v. Knowles, supra-; L. ■& N. R. R. Co. v.*Boland, *supra.*Charges 5 and 9 requested by defendant- should have been *given.*— Clements *v. A. C. 8'. R. R. Co.,*127 Ala. 156; *8oloss_ Co-, v. Mobley, supra.*

*J.*A. Bilbro, for appellant. —

It is the duty of the master to furnish suitable appliances and examine them, to see if they are reasonably *safe.-*— Campbell *v. L. <& N. R. R. Co.,*1Ó9 Ala. 520; 4 Mayf. Dig. § 369; 1 Lebatt on M. & S. pp. 328 and 343-4. The plaintiff had the right to assume that the handle was safe for the service unless he knew to the *contrary.*— L. *'& N, R. R. Co-, v. Baker,*106 Ala. 624; *L. & N. R. R. Oo. v. Hawkins;,*92 Ala. 241. Counsel discuss other assignments but cites no authority.

ANDERSON, J. —

It appears from the evidence that the plaintiffs fall and injuries were the result of the breaking of a cedar lever used by him and others-in propelling a hand car upon which they were riding while in the discharge of their duty to the defendant. It also seems to be a question of fact as to whether there was or was not a latent defect in the lever which caused it to break.- If the breaking of the l.ever was due to a hidden defect not known to the master, or. which had not been discovered by the use of ordinary diligence, then the master, would not be liable for injuries resulting therefrom. On, the other hand., if, the lever broke because of ito, general insufficiency to perform the, functions for which it was used, it was for the jury to determine whether or not the master was negligent in furnishing such a handle, and the plaintiff had a right to- expect that one -would, be furnished which could be' used with safety, and would not be charged,with,qn assumed risk unless its insufficiency was known to him. ' It is the duty of the master to furnish the servant reasonably safe appliances. The servant may assume that the appliances furnished are free from defect. He is not required to exercise ordinary care to ascertain the defect. *—*L. *& N. R. R. Co. v. Hawkins,*92 Ala. 241, 9 South. 271.

*451. Mr. Bailey, in his work on Master’s Liability for Injuiies to Servant (page 2), repeats the long-established rule as to the implied obligation of the master “that he shall provide suitable means and appliances to enable the servant to do his work as safely as the hazards incident to the employment will permit. * * * In the performance of these duties, the master is bound to the exercise of reasonable and ordinary care, and such only.” The authorities are all agreed that the degree required to be exercised is that of ordinary care; yet as to what measure of diligence will constitute ordinary care in its relation to particular facts and circumstances, and what comparisons and tests may be, or ought to be, applied as a basis for determining whether the act or omission was the exercise of such degree of care, there is apparent conflict. It was very .truly said by the federal Supreme Court in a recent case: “There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct should constitute ordinary care under any and all circumstances.” The terms “ordinary care,”- “reasonable prudence,” and such like terms, as applied to the affairs- and conduct of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed care in one case may under different surroundings and circumstances be gross negligence.. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstance’s and surroundings of each particular case, and then -sav whether the conduct of the parties in that case was such ■as would be expected of reasonably prudent men under a.similar state of affairs. It was, therefore, a question for the jury to determine whether the breaking of the lever was due to its insufficiency to perform the service for which it was adopted, or to a latent defect unknown to the master; and, if to the former, it was also within the province of the jury to determine whether the insufficiency of the lever was known to the plaintiff and he had therefore assumed the risk. It must, therefore, be observed that the affirmative charge was properly refused.

*452The second count, as amended, was not subject to the demurrer interposed. It was framed under the second subdivision of the employer’s liability act, and.ascribes the injuries of the plaintiff to the negligence of one Farmer, who had superintendence intrusted to him, in that he failed to keep the handle of the car in proper order and permitted the plaintiff to use it while in a defective condition. The gravamen of the count is the negligence of Farmer and his failure to keep the car in order, and his permitting the plaintiff to use it is a conjunctive averment, and the count does not attempt to set up two separate and distinct, causations,- nor does, it come within the influence of the cases of *R. & D. R. R. Co. v. Weems,*97 Ala. 270, 12 South. 186, and *H., A. & B. R. R. v. Dusenberry,*94 Ala. 413, 10 South. 274. Nor was the second count subject to any of the grounds, of demurrer assigned; but we do not wish to be understood as holding that it is ,a perfect count.

If there are two ways of discharging the service, apparent to the employe, one dangerous and the other safe, or less dangerous, he must elect the safe or less dangerous way, and cannot recover for an injury sustained when the danger is imminent and so obvious that a prudent man would not incur the risk under similar cir*cumstances.*— Bear *Creek Mill Co. v.*Parker, 134 Ala. 293, 32 South. 700; *L. & N. R. R. Co. v. Orr,*91 Ala. 548, 8 South. 360; *M. & O. R. R. v. George,*94 Ala. 200, 10 South. 145. Pleas C and D do not charge that a safe wav was apparent to or known to plaintiff, and were subject to the demurrer interposed, which was properly-sustained.

In order for the plaintiff to be charged with the assumption of risk, it is not sufficient- that the defect be obvious; but it must convey .to a mind like his the danger that may or is likely to result from the defect. It is important here to note- a distinction well elucidated in the cases of *Russell v.*M. *& St. L. R. R.,*32 Minn. 230, 20 N. W. 147, and *Cook v. St. P. R. R.,*34 Minn. 45. 24 N. W. 312, viz.: “It is one thing to be aware of' defects in the instrumentalities or plant furnished by the master for the performance of his services and another thing to know or appreciate the risks resulting, on *453which may follow from such defects. The mere fact that*the servant knows the defects may not charge him with contributory negligence or the assumption of the risk growing out of them.” The question is: Did he know, or ought he to have known, in the exercise of ordinary common sense and prudence, that the risks, and not merely the defects, existed? See, also, Bailey’s Master’s Liability for Personal Injuries, 184. The demurrers to pleas 4, F, and G were properly sustained.

In the case of *L. & N. R. R. Co. v. Stutts,*105 Ala. 368, 17 South. 29, 53 Am. St. Rep. 127, there is an expression by the writer on page 367 of 105 Ala., page 29 of 17 South. (53 Am. St. eRp. 127), which is misleading ánd rather commits the court to the doctrine of assumption of risk based upon a mere knowledge of the defect, regardless of a knowledge of the dangerous consequences; but the ivriter further on quotes, and there appears the additional fact that the servant must have acquired notice of “an incurred risk of danger.” Again the writer says: “The'only defects brought to light and complained of Avere patent, and understood by the engineer as Avell as by the company,” etc. If they were patent and understood by' the engineer, then he, of course, not only kneAV of the defects, but kneiv that their existence increased his risk or danger, and the opinion is really in line with Avhat Ave hold in the case at *bar.*— Birmingham *Railway & Electric Co. v.*Allen, 99 Ala. 359, 13 South. 8, 29 L. R. A. 457; *Eureka Company v.*Bass, 81 Ala. 200, 8 South. 216, 60 Am. Rep. 152.

The trial court properly overruled the demurrer to the replication to the third plea, and properly sustained the one to the rejoinder. It Avas not necessary for the plaintiff to notify the defendant of the defect, if the defendant already knew the same. The law does not require the doing of a useless thing. The case of *Thomas v. Bellamy,*126 Ala. 253, 28 South. 707, merely repeats the statute, which relieves the servant of giving notice if he is aware the master knew of the defect; but we do not think that the statute means that the servant is required to give the notice, whether the master was aware of it or not, unless he knew the master knew it. If the *454master knew of it, then the servant is relieved of giving the notice, although he may not know that the master knew of the *defect.*— Birmingham *Railway & Electric Co. v.*Allen, 99 Ala. 359, 13 South. 8, 20 L. R. A. 457.

The trial court did not err in permitting plaintiff to prove that there were other timbers where Farmer put in the cedar stick. It was for the jury to determine if the other timbers were stronger and better, and if a failure to get a stronger and better one did not tend to show negligence in furnishing ways, works, etc. It is true that the use of the other timbers would not relieve the master if they were insufficient nor was it required to get other timbers if the one used was sufficient; but the failuxe to get a better one, which was as convenient as the one that -was gotten, was a circumstance for the jury.

There was no error in permitting the plaintiff to. show that others had been riding backward. While a custom to violate a rule does not make the violation less negligent, yet the existence and promulgation of the rule forbidding the hands from riding backward was disputed, and the fact that they frequently rode backward in the presence of Farmer was a circumstance for the consideration of the jury in determining whether or not such a rule existed.

The plaintiff had the right to show that "he was ruptured by the fall, and to exhibit himself to the jury, if the trial court saw fit to permit him to do so. It is true that the complfiint did not claim damages for a rupture, and the record discloses no' amendment to- cover this claim; bxxt the bill of exceptions recites that leave was asked and granted to amend in this respect, and we will presume from' these recitals, 'that the complaint was axnended so as to meet this evidence, in. order to sustain the ruling of the lower *court.*— Lesne *Case,*3 Ala. 741; *Bettis’ Case,*28 Ala. 214; 2 Am. & Eng. Ency. Pl. & Pr., 468; 1 Am. & Eng. Ency. Pl. & Pr. 581, 582.

Tlxe trial coxxrt properly sustained the objection ás to “whether or not McGfowaii would hate been hurt if he had been standing behind the lever.” It called for the mere conclusion of the witness. It was for the jury to *455determine from tlxe evidence whether or not his position on the ear was the cause of his injury.

There Aras no error in the oral charge as excepted to by defendant.

There Avas no error in giving charges 1, 2, 3, and 4, requested by the plaintiff.

Charges 1, *2,*and 3, requested by the defendant, Avere the affirmative charges, and have been fully discussed in this opinion. They Avere properly refused.

Charge 4, requested by the defendant, Avas properly refused.. If not otherwise bad, it seeks to charge the. plaintiff Avith a mere knowledge of the kind of Avood and its weakness, Axiiet-her he knew that it Avas dangerous to use such a handle or not.

Charge 5, requested by the defendant, was properly refused. It was abstract. The injury was not the result of tools furnished, but Avas the result of a defect in the ways, Avorks, etc.

Charge 6, requested by the defendant, was properly refused. It invades the province of the jury.

Charge 7, requested by the defendant, was properly refused. If not otherwise bad, it seeks to relieve the defendant if the condition of the handle was open to ordinary observation, yet the defect may not have been so open to observation as to apprise the plaintiff that it was dangerous or risky to use the same.

Charge 8, refused to the' defendant, if not otherwise bad, ignores the fact as to whether the split or hollow, if open to ordinary observation, was of such character to put plaintiff on notice that it Asms dangerous or risky to use the same.

Charge 9, requested by the defendant, was properly refused. It was calculated to mislead the jury to conclude that there Avas no duty upon the defendant to see that the handle was. not defective, notwithstanding its defective condition may have been' such, upon examination, that it would be dangerous to use it.

Charge 10, requested by the defendant, was properly refused. If not other Avise bad, it pretermits a knowledge of the defendant of a defect in the handle.

There was no error in refusing the other charges requested by the defendant.

*456After a careful consideration of the evidence, we are not willing to reverse the action of the trial court in overruling the motion for a new trial.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.

ANDERSON, J.

(On Rehearing.) — Upon a reconsideration of this case, while not receding from the general principles enunciated in the original opinion as applied to the questions as presented, and without indorsing the correctness of the pleading throughout the case, which we treated as presented, and upon the grounds of demurrer assigned, we are of the opinion that the case should he reversed for the giving of charge 4, requested by the plaintiff. When the complaint specifies the defects, it becomes matter of description, which it is incumbent on plaintiff to prove with equal particularity, as also that he was injured by reason of said defect. If, therefore, the evidence fails to satisfy the jury that the particular defect existed, or that plaintiff was injured by reason thereof, he would not be entitled to recover. — *Mobile & Ohio R. R. v. George,*94 Ala. 219, 10 South. 145; *L. & N. R. R. Co. v. Coulton,*86 Ala. 129, 5 South. 458. The complaint in the case at bar avers that the defects were that “ the handle of the car was weak and insufficient for the service for which it was used, that it was made of cedar, that it was split, that it was hollow, and that it was unsafe for use.” Charge 4 predicated a finding for the plaintiff if the handle was insufficient and weak because made of cedar, and pretermitted the duty of plaintiff to prove the other defects averred and particularized.

The application for rehearing is granted, and the judgment of affirmance is set aside, and the judgment of the circuit court is reversed, and the cause remanded.