The Montgomery advertiser., 1904-04-20
sLoSs-sHEFFIELD STEEL ANT
 IRON co. V. MORLEY. ADMRx.

| IRON co. V. MORLEY, ADMRX. ETC.
 Action by administratrix to recover damages for the alleged negligent killing of employe. Appeal from the Circuit Court of Lauderdale
 1. Action for death of empioye; suf- fciency of compIaint.--In an action | by an administrator to recover dam | ages for the alleged negligent killing
 of his intestate. a count of the com plaint which ascribes the intestate's death to the negligence of an engineer
 in charge of an engine and fails to
 aver that the engine was on a rail-
 way. does not state a cause of action l under subsection 5 of the employers liability act (Code. Section 174s) ?. Same. In an action by an admin
 istrator to recover damages for the
 death of his intestate who was an em- ploye of the defendant. a count of the
 complaint which alleges that the in-
 turies resulting in the death of the
 plaintiffs intestate were caused bx&ea- | son of defects in the condition of tho
 works. machinery or plant used in the
 business of the defendant, in that
 "the engine which was being operat-
 ed by the defendant upon It's said
 track at the time of the injury com
 plained of. was defective in not hav- ing a head light. which defect arose from and had not been discovered or
 remedied owing to the negligence of
 the defendant, or of some person in
 the service of the defendant and en-
 trusted by the defendant with the duty Of seeing that the ways. works, ma- chinery or plant were in proper con- dition." sufficiently states a cause of action.
 3. Liability of employer for defec- tive condition of plant; tools within
 the provision of employers liability l act.-An injury resulting to an em- ploye from the negligence of his em- ployer, or of another employe entrust-
 ed by the common employer with the
 duty of seeing that his plant is in proper condition. in not providing suit able tools, implements or appliances
 or in allowing such tools, implements or appliances to be in a defective con- dition. is within provisions of sub-di- vision 1 of the employers liability act
 Code. Section 174s) which makes an employer liable for the negligence of a co-employe. when the injury is caused by reason of any defect in the condition of the ways, works, machin- cry or plant connected with or used in the business of the master or em- ployer. Ga. Pac. R. Co. V. Brooks s4 Ala. 1SS Birmingham Furnace Co. V. Gross. Admr., 97 Ala. 220; Clements V. A. G. s. R. R. Co.,, 127 Ala. 166; South ern Railway Co. V. Moore, 12s Ala. 434. qualified and explained).
 4 Same; same; case at bar-A piece of timber commonly used by fur mace companies to scotch or chock hot pots and hold them in position on in- clined tracks built upon slag piles of such furnace companies constitute a part of the plant of such furnace com panies. within the meaning of sub-di- vision 1 of Section 1749 of the Code
 .. Action for negligent killing of employe; sufficiency of complaint In an action by an administrator to re- cover damages for the alleged negli- gent killing of plaintiffs intestate. who was an employe of the defendant, a count of the complaint which ayers that the injuries which resulted in the death of the deceased were caused by reason of defects in the works, ma chinery or plant used in the business of the defendant. in that the railroad track whereons the accident occurred was defective in not having tits cross ties tamped and filled in." etc, Is not subject to demurrer upon the grounds that it does not appear that the all ieged defect in the track was the proximate cause of the plaintiffs intes- tate's death, or that 1t does not ap- pear that the defendant was guilty of any negligence of which the plaintiff can complain.
 6. Action against furnace company for negligent killing of employe; ad- instability of evidence.-In an action by an administrator against a furnace company to recover damages for the alleged negligent killing of pIaintifrs intestate, who was an employe of the defendant and who at the time of his death was engaged as a switchman in trying to couple hot pot to an engine owned by the defendant, where the I evidence shows that the accident oc- cured upon a track built on the slaR pile, for the purpose of moving hot pots containing molten slack from the furnace to a place where they were dumped, it is not competent for a wit ness to testify as to whether or not the track on which the intestate was killed was like the tracks of other well regulated railroads. the track used by the furnace company for the purpose shown. being very different from the track of a railroad company.
 '. Same; same.-In such a case, 1t Is competent for a witness who was shown to have had many years ex- perience in moving hot pots from furnace and was familiar with the
 NHSSANs dangerous or safe to couple the engine and the hot pot in the manner at- tempted by the intestate at the time of the accident which resulted in his death.
 s. Action to recover damages for death of employe; general affirmative charge.-In an action by an adminis- trator to recover damages for the al- legged negligent killing of his intestate who was an employe of the defendant, where one of the counts ascribes the intestate's death to the negligence of a co-employe who was in charge of the engine, but the evidence shows that every act done by the engineer was characterized by due care and caution and was proper in itself and was done in compliance with signals from the lntestate. the general affirmative charge requested by the defendant as to such count should be given.
 2. Same; same.-In such a case where a count of the complaint as- cribes the intestates death to the ab- sence of a head light to the engine. in front of which the intestate was at tempting to couple a hot pot where the evidence shows that while there |