The Montgomery advertiser., 1906-04-19

TUTWILER COAL. COKE AND IRON
 co. V. HARRINGTON.
 Action for Damages for Personal Injury
 to EmpIoye.-Decided Nov. 30, 1905.
 f3s So. Rep. s9S).
 |. Master and Servant; Injuries to Servant: Employers Liability Act; Con- plaint---In an action for injuries to miner by the roof of the mines, or pas sage, falling in, upon him. count which follows substantially the ian- guare of Subdivision 1. Section 1I49, Code 1896, with respect to the duty or, and its breach by. defendant ana ayers defective condition of the ways etc., and the proximate injury tnereIron' sufficfently states a cause or action' and imposes upon the plaintiff the bur den. of showing the relation of master and servant, the duty of defendant 10 maintain the ways, works. etc, at point where injury occurred, as well as the ucglfxence of the employer, or some one by him intrusted with the duty oI see ing that they were in proper condition' 2. Same: Pleas; Contributory Negn- ~ence.--A plea of contributory negn- rence which ayers no more than that, though aware that the roof was not uropped or supported, plaintiff negll- gently remained in defendants service for an unreasonable length of time, and in the use of said roof, wherepy and as a proximate consequence, he re- ceived his injuries, was subject to de- murrer as not averring state of facts to which the law attaches negligence.
 3. Evidence; Conclusions--A witness may make a collective statement or fact which Is not a mere conclusion
 1. Appeal; Evidence; Harmless Error Although an objection IS sustained to a question, yet if the question IS fully answered. the sustaining or the
 
 s. Master and Servant; Assumed Risk.-when the evidence is in con- nict as to whether plaintiff knew or the dangerous condition of the ways, works. etc, although he may have known they were defective. 1t cannot be asserted as matter of law that ne assumed the risk
 6. Same; Delegated Authority; Fellow Seryauts-The duty resting on the mas fer to supply a safe way. works. etc, is non-delegable, and if delegated the person to whom delegated becomes the alter ego of the master; but, after pro- viding such safe way, works. etc, the master may delegate to another the duty of maintaining such ways. works, etc, in safe condition, and Is not liable to the fellow servant of the person to whom such duty is delegated. under a common law count, except for negli- gence in the selection of such servant. or in giving him negligent. orders rela- tive to the maintenance of such works, way, etc, (overruling contrary, dictum in Eureka Company v. Bass, ~S1 Ala 200. 6 So. Rep. 2Ie, 60 Amer. Rep 152).
 Appeal from Birmingham City Court. Heard before Hon. Charles A. Senn.
 Rehearing denied Jan. 9. 1906.
 Reversed and remanded. Opinicn by Tyson,
 simpson. Anderson and Denson. JJ.. concur.
 TENNESSEE COAL, IRON. AND RAIL
 ROAD co. V. BRIDGES. Action by Employees Administrator for
 Death of Intestate.--Decided June
 90, 1905s-(3s So. Rep 9o2).
 1. Master and servant; Injuries to Servant; Fellow Servant; ComplHint.-- A count framed under sub-division of Section 1749 of Code 1896, which ayers that the injuries to an employe was caused by being struck by defendants railroad engine, but-fails to allege that the person whose negligence was complained of was in charge of the en- zine or cars of defendant, was defective and stated no cause of action.
 2. Same.-A common law count al- Ieging wanton, reckless or intentional negligence in the master In the seiec- tion of the negligent servant. or in giving him orders, etc.. is demurrable.
 3. Same: Liability of Master.--A mas ter is not liable for the injuries done an einploye by the wii1fuI. reckless or Intentional act of fellow servant, m