Alabama Mineral R. Co. v. Marcus

• Decision Date: 20 December 1900
• Citation: 128 Ala. 355,30 So. 679
• Parties: ALABAMA MINERAL R. CO. v. MARCUS. [1]
• Court: Alabama Supreme Court

30 So. 679

128 Ala. 355

ALABAMA MINERAL R. CO. v. MARCUS. ^[1]

Supreme Court of Alabama

December 20, 1900

Appeal from circuit court, Shelby county; George E. Brewer, Judge.

Action by R. L. Marcus against the Alabama Mineral Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The third and fifth counts of the complaint averred that defendant was engaged in operating a railroad; that it employed a section foreman and hands to keep it in repair that plaintiff was employed as a section hand of defendant that defendant used a hand or lever car in connection with the repair of its road, which was under the control and superintendence of a section foreman under whom plaintiff worked, and whose orders he had to obey; that on September 9 1892, while so employed, in the regular course of his employment plaintiff was ordered by said foreman to occupy a dangerous place on such car, against the protest of the plaintiff, who was young and inexperienced, which facts were known to said foreman; that plaintiff obeyed the orders of said foreman, and said car was permitted and ordered by said foreman to be run at a great, dangerous, and reckless rate of speed, whereby plaintiff fell from said car and received the injuries for which he sues. The seventh count, after averring plaintiff's employment and the character of his work alleged that he was a minor under 19 years of age, was physically and mentally immature, and was inexperienced in the work whereby he was injured,-facts which it was averred were well known to the foreman, whose orders plaintiff had to obey,-and charged the defendant with negligence in putting plaintiff in a dangerous position without any warning, or instructing him as to the safest method to pursue in the discharge of his duty, and that this negligence resulted in plaintiff's injury. The eighth, ninth, and tenth counts averred the same facts as to plaintiff's employment and duties, his age, want of experience, and physical and mental immaturity; that he was placed in a dangerous position, and injured by reason of the dangerous and reckless running of the car under the control of said foreman. There were demurrers to each of these counts, but they were overruled by the court. There were verdict and judgment for plaintiff. During the term at which the trial was had, an order was entered allowing defendant 60 days for a bill of exceptions. Before the expiration of this order, another was made, extending the time to January 1, 1898. The bill of exceptions was signed January 28, 1898, and contained a statement that it was signed and allowed in accordance with an order entered during term time, and the order made by the presiding judge in vacation after said term. It was further shown that a correct bill of exceptions was presented to the presiding judge before the expiration of the time allowed, and the judge sent the same to opposing counsel, but stated that if not returned in time he would make an order for further extension, but such order did not appear in the record.

Thos. G. & Chas. P. Jones and Alex. C. Birch, for appellant.

Browne & Leeper, for appellee.

DOWDELL J.

The authority to sign bills of exceptions is regulated and governed by the statute (Code 1896, §§ 616-619). Where an order is made in term time fixing a time in vacation for signing a bill of exceptions, such time may be extended by order or orders of the presiding judge in writing, provided the time allowed must not be extended beyond six months from the adjournment of the court. Subsequent orders of extension must be made within the time fixed in the next preceding order. Morris v. Brannen, 103 Ala. 602, 15 So. 865; Beal v. State, 99 Ala. 234, 13 So. 783; Rosson v State, 92 Ala. 76, 9 So. 357; Ladd v. State, 92 Ala. 58, 9 So. 401; Furnace Co. v. Glasscock, 86 Ala. 244, 6 So. 430. Unless the bill of exceptions is signed in conformity with the requirements of the statute, it forms no part of the record, and cannot be looked to by this court for any purpose. See authorities cited supra. In the present case an order was made in term time for the signing of the bill in vacation. The bill of exceptions was signed by the presiding judge on the 28th day of January, 1898. On the 24th day of November, 1897, and within the time fixed by the preceding order, the presiding judge further extended the time by an order in writing to January 1, 1898. After the expiration of this...