The Montgomery advertiser., 1903-08-22

a crane, which was used for lifting cast ings. falling upon the plaintiff. count of the complaint which alleges that the plaintiffs injuries were caused by de- fendant's negligence, in that crane which was a part of the ways. works or machinery of the defendant was de- fective in that 1t was not securely fast ened in its proper position. that the braces holding it were insufficient, or the wooden beams supporting 1t was rotten and defective so that by reason thereof said crane fell while attempting to hoist or move an iron casting. and that ''said defect arose from or had not been dis covered or remedied owing to the negli- gence of the defendant or some person in thhe service of the defendant, and intrusted by 1t with the duty of seeing that the ways, works. machinery or plant connected herewith were in proper condition" is sufficient to state a cause for action. and is not subject to demur- Ter upon the ground that 1t does not neg ative that plaintiff had knowledge of the defect complained of.
 2. Same; same.-In such an action a count of the complaint which ayers that the injuries complained of resulted from the defendants negligence, in that the wall against which the crane was erect ed was not sufficiently strong to support the crane, and in consequence 1t gave way and caused the crane to fall upon plaintiff infiicting said injuries. and that the said defect ''arose from or had not been discovered or remedied owing to the negligence of the defendant or of some person in the service or mployment of the defendant intrusted by 1t with the duty of seeing that the ways. works machinery or plant connected herewith were in proper condition" sufficiently states cause for action, and 1t not subject to demurrer upon the grounds that 1t does not negative that plaintiff had knowledge of the defect complained of.
 B. Evidence! when secondary evidence of what witness testified on former trial not admissible.-In the trial of case 1t Is not competent for one of the par ties thereto to prove what a witness swore to on a former trial of said case upon the mere showing that the witness was not in attendance and was staying indefinitely at place in the State of Alabama which was more than 100 miles from the place of trial his deposition might be taken Code, Secs. 1895. 1sss), and being within the jurisdiction he was not out of reach of process by which his attendance at the trial could be com- pelled.
 4. Evidence: where error in ruling thereon without injury.-If the court, in odStdAhiHB all OUJSCtlOH u QuG8ltUu aHHGO witness commits an error. such error is without injury to the party asking such question if the witness subsequently, in his testimony gives the information called for by the question.
 5. Action by employe against employ CT for negligence; when general afhrma- tive charge properly refused.-In an ac- ton by an employe against employer to recover damages for personal injuries caused hV A MSAd f1 inc HafAnA. ants work for lifting heavy substances falling on the plaintiff, where in the counts of the complaints the negligence complained of was that there were de- fects in the wooden beams constituting part of the crane, and in certain metal strips and rods whereby the crane was held in it's position and fastened to the wall, and that the wall was not suffi- ciently strong to support the crane, and there is evidence tending to show that said wooden beam was unsound, and that when the accident occurred this beam and wall fastenings broke, and that part of the wall was pulled down, the question of the defendants liability is one for the determination of the jury, and therefore it is proper for the court to refuse the general affirmative charge requested by the defendant as to each of the counts of the complaint.
 6. Same; unsound condition of beam not immaterial. though only contributory to the accident; charge of court.--In such case. if the unsound condition of the wooden beam was only a contributory and not the cause of the fall, that con- dition was not immaterial. and therefore a charge Is erroneous and properly re- fused which instructs the jury that If the jury find from the evidence that the wooden work around which the ton of the crane or pivot worked, had but very little to do with the cranes falling, and that the breaking of the guy rods was the main cause of its falling, then 1t would be immaterial that said wooden work was cracked or defective, If that was not the cause of the crane's fall ing."
 '. Negligence of employer; duty of employer to employe; charge of court to jury.-An employer is bound to use only reasonable diligence in the maintenance Of machinery and appliances used in his business. and Is not chargeable with negligence on account of defects therein when their existence is not discoverabIe by use of reasonable diligence; and there fore in an action by an employe against an employer to recover damages for per- sonal injuries caused by a crane used in the defendants plant falling on the plaintiff, a charge asserts a correct prop osition of law and should be given at the request of the defendant, which in- structs the jury that If they find from the evidence that the accident occurred by reason of hidden defects in the iron guy rods or iron plates. which defects were not known to the defendant and could not be known to the defendant by the exercise of reasonable diligence in time to have avoided the injury, then the plaintiff cannot recover"
 Reversed and remanded. Opinion by Sharpe, J.
 BIRMINGHAM RAILWAY & ELEC-
 TRIC CO.,, V. JACKSON.
 Action Against Street Railroad Company
 to Recover Damages for Personal In-
 juries.-Appeal from City Court of
 Birmingham.
 1. Action against street railroad com pany for personal injuries; admissihility of evidence.-In an action against a street railroad company to recover dam ages for personal injuries caused by the plaintiff being run over by one of the de- fendants cars at point where a rail-