The Montgomery advertiser., 1903-04-15

havinI condemned to said orders: that sala torenA1 negligentiy ordered ana os ass ssscseu p!aipttff to take out sne Dolts ana fastenings which held shafting and puLy n place. without in any way icing saad snaftapg to prevent 1t from failing; that when plaintiff put his hand through .ne opening in said pulley to tie rope 70 pa;ntiis s ls s.nS oSwn; ;,at ,s said % in1urg wsa caused by the negligence of said foreman, wno was in the service of defendant and m ene exercise of superintendence en- trusted to him by defendant. Held, that to show negligence on the part of said Ioreman, or as showing contri6utory negligence on the part of plaintiff. and that said count stated cause Of action under subdivision 3 of section l74s of the
 z Same. A count in complaint .alleg- ga mat piaantin, an employe Of defendant unoer one B. as foreman, was engaged m tanng down a broken piece of shaft ins 70 wnach was attached large pulley: that said B. had superintendence of plainun and also of the work of taking down saad shafting; that plaintiff was DounU DO conform to the orders Of said E.. and did so conform at the time of said injury: that said B. while in the exercise of said superintendence over plaintiff end che work. negligently ordered and directed plaintiff to take the bolts and fastenings out Of said piece of broken shafting be- fore uetng 1t in any manner to prevent it from falling. and negligently ordered and directed plaintiff to tie said piece of broken shafting after the bolts and fastenings were taken out; that plaintiff compiled with said order. and while he was in the act of doing so said broken piece Of shafting fell and mashed off his finger Held, that said count stated a good cause of action under subdivision of section 1749 of the Code, and was ot demurrable for showing contributory negligence in the doing of an obviously dangerous thing.
 3. Same-A count alleged an injury to plaintiffs hand received by him while in deIenoants employment. caused by the railing or piece of shafting with large bully on 1t; that said shafting fell and said injury was inflicted by reason of the negligence of defendants employe. one B., who was in charge of the work of taking down piece of broken shafting at de- rendants plant: that said injury resulted Of defendants said employe, who had charge of said work. and while conform ing thereto; that plaintiff was bound to conform to the orders of defendants said empioye, who was his superior and in charge of the work of taking down said shafting., etc. Held, that said count failed to state a cause of action under Section 1749 of the Code, in that it failed to show that B. was entrusted with any superintendence or was negligent while
 
 failed ot show that B. gave any order, or what 1t was. or that it was negligent.
 4 Same; Code, Sec. 1149. sub-div. "A count in a complaint alleged that plaintiff was working for defendant under one B. and his foreman, in taking down broken piece of shafting to which was q e,tached large pulley; that the means which de- fendant provided for taking it down was large rope which was to be thrown over plate above said shafting and pulley, and made fast gaid DnllAV that if could be lowered by degrees and not allowed to fall: that said foreman was in the employ of defendant and had the superintendence of taking said shafting and pulley down entrusted to him and whilst In the exercise of such superin- tendence negligently failed 10 tie or have said rope tied to said pulley and shafting before the fastenings which held said pulley and shafting in place were taken lose; and negligently ordered and directed plaintiff to take out the bolts and fasten- ings which held said pulley and shaftings in place, before tieing said rope to said pulley; that the taking out of said bolts and fastenings before said rope was tied to said pulley left it with nothing to hold 1t except the pressure of its ends against the fianges to which it had been bolted and in dangerous condition, being able to fall on receiving the slightest jar, and when plaintiff attempted to tie said rope to said pulley 1t did fall and injured plaintiffs hand; that the bolts which helo said shafting and pulley in place were taken out before said rope was tied tC said pulley, and by reason of this negli. gence plaintiff received his said injury l Held, that the count stated good cause of action under subdivision of Sectior 1749 of the Code and was not demurrablt for showing contributory negligence. 5. Employer and employe; evidence | damages.-Where plaintiff has testified | that he was a blacksmith in defendant employment and was earning from s tc 30 per day before he went to work fol creased his earning capacity. by render ing 1t impossible to do his work as rapidly as before the injury, 1t Is not errol to allow him to testify that he was dis charged by defendant from his position as blacksmith-which he held after hC received the injury-on the ground tha he was too slow.
 6. Same; evidence; conclusion-Whert defendant pleads that plaintiff was guilty of contributory negligence in taking out certain bolts, when he knew or should have known that by so doing the shafting and pulley would fall, 1t was not errol to allow plaintiff to state that so far a: he could see 1t was not dangerous tC take out the bolts that held the pulley tC the shafting.
 2. General affirmative charge; when i'm proper-The general affirmative charge i. never proper where there is direct conflict in the evidence on material issues in the case.
 Reversed and remanded.
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