[Georgia Pacific Railway Co. v. Brooks.] condition of the ways, works, machinery or plant connected with or used in the business of the master or employer."-(Code, 1886, § 2590, subd. 1.) APPEAL from Birmingham City Court. JAMES WEATHERLY, for appellant. HEWITT, WALKER & PORTER, contra. CLOPTON, J.-The action is brought by appellee to recover damages for an injury suffered while a workman in the service of the appellant. Plaintiff's counsel admit that the suit is instituted and the complaint framed, under the first sub-division of section one of the act of February 12, 1885, entitled an act "To define the liabilities of employers of workmen for injuries received by the workman while in the service of the employer," which with some verbal changes, constitutes section 2590 of Code 1886. In order to maintain the action the plaintiff must bring himself within the purview of the act. By the first sub-division of the section, the master or employer is made liable to answer in damages to a servant or employe as if he were a stranger, and not engaged in such service or employment; when the injury is caused by any defect in the condition of the ways, works, machinery, or plant connected with, or used in the business of the master or employer." It is further provided in a subsequent part of the section, that the master or employer is not liable under this sub-division, unless the defect therein mentioned arose from, or had not been discovered or remedied, owing to the negligence of the master or employer, or of some person in the employment of the master or employer and entrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition. There is no pretense that the defect complained was in either the ways, works or plant. The point of contention is, what is meant by machinery as employed in the act. In construing words used in a statute, reference should be made to the subject of legislation, and if they have acquired a defined, popular signification when referable to such subject, the presumption is, that they were used in such sense by the legislature. A machine is a piece of mechanism, which, whether simple or compound, acts by a combination of mechanical parts, which serve to create or apply power to [Georgia Pacific Railway Co. v. Brooks.] Thus produce motion, or to increase or regulate the effect. As used in the patent act, it has been defined to be, “a concrete thing, consisting of parts, or of certain devices or combination of devices."- Burr v. Burgwee, 1 Wal. 531. Primarily, machinery means the works of a machine-the combination of the several parts to put it in motion. But, we do not understand that the term was used in the statute in its primary sense, but having a more enlarged signification, should be construed as so used, nothing appearing to show that it was intended to be used in its primary or restricted sense. understood, the term machinery embraces all the parts and instruments intended to be, and actually operated from time to time, exclusively by force created and applied by mechanical apparatus or contrivance, though the initial force may be produced by the muscular strength of men or animals, or by water or steam, or other inanimate agency.-Seavy v. Ins. Co., 111 Mass. 540. The carding, spinning and weaving machines, together with the instrumentality by which the prime motive power is created or applied, constitute the machinery of a cotton mill. When cars, though used at times, and at other times detached, are formed into a train, to which the propelling force is imparted by means of a locomotive, the entire train constitutes machinery, connected with or used in the business. The circumstances and cause of the injury are alleged in the complaint substantially as follows: The plaintiff, who was working under the control and directions of W. C. Burton, to whom the defendant had entrusted the superintendence of the work, had raised a cross-tie by means of a pinch-bar to the iron rail on the track of the railroad, and was holding it in place, while another employe of the railroad, who was also working under the control and directions of Burton, endeavored to drive an iron spike with a hammer furnished by defendant for that purpose; and owing to a defect in the hammer, or in the handle thereof, the co-employe missed the spike, and struck the iron rail with such force as to cause a scale to fly therefrom, which struck and put out plaintiff's eye. The complaint further avers, that the defect in the hammer arose from the negligence of an employe of defendant who was entrusted with the duty of seeing that it was kept in proper condition, and that the defect could, and would have been discovered by the exercise of ordinary care and diligence. A hammer is a tool or instrument ordinarily used by one man in the performance of manual labor. It [South & North Ala. R. R. Co. v. Donovan.] may be made an essential part of machinery when intended to be, and is operated by means thereof; but when disconnected from any other mechanical appliances, and operated singly by muscular strength directly applied, such tool or instrument is not machinery in its most comprehensive signification, or in the meaning of the statute. The plaintiff is not entitled to recover on the complaint as framed, and the demurrer thereto should have been sustained. It is unnecessary to consider the other questions raised, as they can not again arise. Reversed and remanded. South & North Ala. R. R. Co. v. Don ovan. Action by Parent against Railroad Company for Personal 1. Railroad company; running train within limits of city or town; injury to person on track.—It is the duty of railroad employes running a train within the corporate limits of a city or town, where necessity may compel or usage sanction walking upon the track at places other than at public crossings, to keep a vigilant outlook, even for trespassers. 2. Same; rate of speed of train within city-Running a railroad train through the corporate limits of a city at a greater rate of speed than that prescribed by the city ordinance, where the ordinance is not shown to be unreasonable, is per se culpable negligence. 3. Same; injury to child on track; proximate or remote cause of injury. In an action against a railroad company for personal injury to plaintiff's minor child while trespassing on defendant's track, where there was evidence that when the child went on the track, he looked both ways, and saw no train approaching, it is a question for the jury whether the father's act, in allowing the child to go on the track was the proximate or remote cause of the injury. 4. Action by parent for injury to child; former recovery by child.—A recovery for an infant by next friend against a railroad company for personal injury was not prior to act of January 23, 1885, Code of 1886, §2588, a bar to an action for the same injury by the father for his own benefit. APPEAL from Circuit Court of Jefferson. This was an action against the South & North Alabama [Sonth & North Ala. R. R. Co. v. Donovan.] mingham. The child was under ten years of age; was in the habit of crossing the railroad track at the place where he was injured as he went to and fro to carry dinner to his father: was on the track when struck and looking in the opposite direction from the train of cars, which consisted of coal cars and a locomotive, and the locomotive was in rear of the cars and pushing them backward at a greater rate of speed than four miles per hour. An ordinance of the city of Birmingham prohibited, under penalties, the running of locomotive engines, within the corporate limits, at a greater rate of speed than eight miles per hour when running forward, and four miles per hour when running backward, and required the usual signals to be given continuously by ringing the bell or otherwise, when locomotives or trains were being run in the city. The place where the injury occurred was not a public crossing, but the evidence showed that many people walked on and beside the railroad track about there. Evidence as to giving of signals by the approaching train was conflicting, as was also the evidence as to how long the boy had been on the track when struck, defendant's testimony being that the boy was walking along by the side of the track and stepped thereon when the train was only thirty feet behind him. Defendant filed several pleas; the first plea set up that "said infant son was trespassing upon defendant's railroad track at a point where there was no public crossing and where he had no right to be and where the defendant had the exclusive right to its railroad tracks; and defendant avers that so soon as its employes discovered that said infant son of plaintiff was on its track and in a place of danger, its engineer reversed the engine, blew the alarm whistle, and its other servants applied the brakes, and all that could be done to avert the injury was done by its employes and servants." Plaintiff demurred to this plea on the ground, 1st, that "said plea shows on its face that defendant and its servants or employes in charge of said locomotive and train of cars did not do all that could have been done to avert the injury complained of;" 2d, that "said plea fails to show whether or not defendant and its servants did use all the means in their power to avert the injury." The court sustained this demurrer. The substance of the 2nd plea appears in the opinion. The demurrer thereto was that "said plea shows on its face that the plaintiff in the present action is not barred of his right to maintain the suit.” [South & North Ala. R. R. Co. v. Donovan.] The third plea set up that William Donovan, the son, was guilty of contributory negligence which contributed proximately to the injury complained of and averred that the injury was not inflicted by defendant, or its employes, wilfully, wantonly, or intentionally. The fourth and fifth pleas set up that James Donovan, plaintiff, was guilty of contributory negligence in permitting his son to be on and about defendant's railroad track not at a public crossing and where the son had no right to be, and that his contributory negligence contributed proximately to the injury complained of and averred that the injury was not inflicted wilfully, wantonly, or intentionally. The demurrer to these pleas was overruled. At the request of plaintiff the court gave the following charges: 1. "If the jury believe from the evidence that defendant's car that caused the injury was at the time being run through a populous city at a place where many persons were accustomed to walk along and across the track of defendants' railroad, then it was the duty of the defendants' company or its agents or servants in charge of the train to keep a lookout for persons upon the track, and if they failed to do so, they were guilty of negligence." 2. If the jury believe from the evidence that the defendants' train was being run at the time of the injury at a greater rate of speed than is prescribed by the city ordinance which is in evidence, then such running of said train at such rate of speed would be negligence." The court refused to give each of the following charges requested by the defendant: 1. If the jury believe from the evidence that plaintiff's infant son William Donovan was of such tender years that he did not have sufficient discretion to know that it was dangerous to stand or walk on a railroad track, or not sufficient discretion to avoid danger, and if the jury further believe from the testimony that the plaintiff knew that it was dangerous for his said infant son to stand or walk on the track of the railroad to the point where the path crosses the road tracks opposite twenty-first street, and if the jury further believe from the testimony that the plaintiff knew that the said son William Donovan was in the habit of going up the tracks of the said railroad to said point where he would bring his dinner to him, plaintiff, and had taken no steps to prevent his said son from doing so, then plaintiff was guilty |