The opinion
ON rehearing.
BLAND, J.
We have again carefully examined the record, the briefs and the suggestions of counsel on both sides, filed before and after the last argument of this case, and are satisfied with what was said in the original opinion written by Trimble, P. J., except that we have arrived at the conclusion that the petition is broad enough to cover the negligence shown by the testimony and that the case was properly submitted to the jury.
The petition alleges, after setting out the facts in reference to the location of the passageway, the duties of
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plaintiff, the absence of light and that the passageway was dark, that plaintiff while passing’ along the passageway-
“. . . came in contact with some lumber which had been negligently and carelessly left by the defendant in said passageway; that there was at all the times herein mentioned a rule of the defendant company that said passageway should be kept clean and free of all lumber and debris, but that prior to said 21st day of. November, 1920, the defendant had negligently and carelessly permitted lumber and debris to be and to remain in said passageway, and that thereby said defendant had negligently and carelessly permitted said passageway to become and to be dangerous and not reasonably safe to the plaintiff and other of defendant’s employees using .said passageway; that because of the negligence and carelessness of the defendant in leaving said lumber and said debris in said passageway, and because of the negligence and carelessness of the defendant in permitting said passageway to become and to be dangerous and not reasonably safe, as aforesaid, the plaintiff was caused to and did fall down,” etc.
It will be noted that the petition did not state at what point in the passageway the timbers were piled. It merely alleges that they were left and permitted to be in the passageway, rendering the passageway dangerous and unsafe. The petition did not allege negligence on account of the timber bing piled along the side of. the passageway and was sufficiently broad to permit the introduction of evidence showing the leaving of the timber anywhere in the passageway so long as it was shown that such leaving was negligent. The submission, which was had by plaintiff’s instruction No. 1, has the jury find “the defendant, by and through its foreman, Cooper, if you find he was a foreman, had carelessly and negligently left some timbers in said passageway and that said timbers were in said passageway on said 23 st day of November, 1920, and that the presence of said timbers
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out in
said passageway, if you so find, rendered said passageway dangerous and not reasonably safe. ’ ’ (Italics ours.)
This instruction submits that if the jury find that because of tbe unsafe and dangerous condition of the passageway caused by reason of the timbers being not only
in
tbe passageway but
out in
the passageway, the jury, upon finding other essential facts, should find for plaintiff; We think that the instruction, while probably not ideally worded as to clearness, is sufficiently so to inform the jury of the real issue in the case, that is, that the timbers were piled out into the aisle rather than being piled close up to the columns.
The judgment is, therefore, affirmed.
All concur.