Collier v. Coggins

• Decision Date: 16 May 1894
• Citation: 15 So. 578,103 Ala. 281
• Parties: COLLIER v. COGGINS.
• Court: Alabama Supreme Court

15 So. 578

103 Ala. 281

COLLIER v. COGGINS.

Supreme Court of Alabama

May 16, 1894

Appeal from circuit court, Marshall county; John B. Tally, Judge.

Action by W. M. Coggins against H. J. Collier, Allison, Schaeffer &amp Co., the Tennessee & Coosa River Railway Company, and the Nashville, Chattanooga & St. Louis Railway Company for personal injuries. From a judgment for plaintiff against defendant Collier only, the latter appeals. Reversed.

The court, at the request of plaintiff, gave the following written charges: (1) "The jury may look to the fact, if it be a fact, that plaintiff was not a skilled workman, in connection with all the other evidence, in determining whether or not the plaintiff was directed by those having the right to direct him to aid in the raising of the timber in question." (2) "If the jury believe that Billingsley had the right to direct Coggins, and did direct him, and that Coggins was obeying his orders, and, while so doing, was injured by negligence on the part of the defendant, then the plaintiff ought to have damages in such sum as the evidence entitles him to, if he did not contribute to his own injury by his own negligence." The court refused to give each of the following charges, requested by defendant: (1) "I charge you, gentlemen, that, if you believe the evidence in this case, you must find for the defendants under the first count of the complaint." (2) "I charge, you gentlemen, that, if you believe the evidence in this case, you must find for the defendants under the second count of the complaint." (3) "I charge you, gentlemen, that, if you believe the evidence in this case, you must find for the defendants under the third count of plaintiff's complaint." (4) "I charge you gentlemen, that, if you believe the evidence in this case you must find for the defendants under the fourth count of the complaint." (5) "I charge you, gentlemen, that if you believe the evidence in this case, you must find for the defendants." (6) "I charge you, gentlemen, that if, from the evidence, you find that one John Stout was the authorized agent or supervisor in charge of the erection of the trestle mentioned in plaintiff's complaint, and if you further find the plaintiff was aware of the existence of the defect in the post which struck the plaintiff, and, after such knowledge, failed to notify said John Stout, and, after such knowledge, remained at work at or near said post, and was injured thereby, then you must find for the defendant H. J. Collier." (7) "If the jury believe from the evidence that plaintiff had knowledge of the existence of the negligence or defect which caused his injury, and that the defendants Allison, Schaeffer and Company, and H. J. Collier were not aware of such negligence or defect, and plaintiff failed to notify said defendants, but continued in the work, he cannot have a recovery in this case." (8) "I charge you, gentlemen, that, under the evidence in this case, the plaintiff, at the time of the accident, was not acting within the line of his duty." (9) "I charge you, gentlemen, that if, from the evidence, you find that the plaintiff knew that the post which had been erected at the place of the accident mentioned in his complaint was defective, and failed to notify the defendant H. J. Collier, or his superior person or agent in charge of said work, and if you further find the plaintiff's injuries arose from said defective post, then you must find for said defendant H. J. Collier." (10) "I charge you, gentlemen, that the defect in the post which fell and injured plaintiff is not such a defect, within the meaning of section 2590 of the Code of 1886." (11) "I charge, you, gentlemen, that if, from the evidence, you find that the plaintiff knew that the post in one of the bents of defendant, which had been erected without a pin through it, was defective, and, after knowledge of such fact, remained in the employ of the defendant H. J. Collier, then you must find for the defendant H. J. Collier." (12) "I charge you, gentlemen, that the failure of the employes of the defendant H. J. Collier to place a pin through the post which fell and injured plaintiff is not such negligence as will support a recovery in this case against the defendant H. J. Collier." (13) "If the jury believe from the evidence that there is a variance between these allegations of the complaint and the evidence, in this: that Coggins received his instructions, to go and work at the place where the injuries were received, from one Cans Billingsley, and not from John Stout,-they must find for the defendants." (14) "If the jury believe from the evidence that there is a variance between the allegations of the complaint and the evidence, in this: that Coggins received his instructions, to go to work at the place where the injuries were received, from Cans Billingsley, and not from John Stout, except that Stout had told him, said Coggins, to follow the instructions of Billingsley when not otherwise engaged,-they must find for the defendants."

John F. Martin, for appellant.

Lusk & Bell, for appellee.

COLEMAN J.

This cause was submitted on a motion to dismiss the appeal, and if that is overruled, then upon its merits. The judgment was rendered in the circuit court on the 27th day of April, 1893. The appeal and supersedeas bond were filed on the 2d day of May, and, by statute, the appeal was returnable to this court on the 29th day of May afterwards; that being the first Monday after the expiration of 20 days from the date of the appeal. Code 1886, § 3620. The transcript for the appeal was filed in this court on the 5th day of December, 1893. It is evident that there is an error as to the...