The Montgomery advertiser., 1901-11-21


 the Employers Liability Act, Code, Sec. tentional wrong.
 3. Action by employe against em- ployer: sufiiciency of complaint.-A count in a complaint brought by the personal representative of deceased employe. against the employer which charges that the injury resulted from the failure Of the employer to discharge It's duty to its employees by neglecung to provide rules for signals to engineers of switch engines in a yard where there are many tracks, and where two or more engines are employed near each other at night, it being averred that the signals used were the same for all engines and that plaintiffs intestate was killed in con sequence of the engineer of the engine with which he was working mistaking signal intended for another engineer, states a good cause of action ct com mon law.
 l Same; same.--A count in a complaint brought by the personal representative of deceased employe against his Cm- ploycr for damages on account or in- juries causing death, which ayers tEat the injury was received while the in- testate was rightfully in discharge CT the duties of his employment, by the neGi- gence of a fellow servant in charge of an
 
 as to produce the injury, is sufficient certain and definite and states good cause of action.
 5. Same; relevancy of evidence.-In such case, where the facts are Tn dis pute as to whether the injury was caused by the engineer in charge of the engine causing the injury. mistaking signal intended for another engineer. or whether the intestate gave the signal for the 1f avtdenrA tend- ing to show that the interstate knew knew that the coupling could not be made | is relevant to the issue.
 6. Same; evidence of earnings.-In such case evidence that deceased was laying | by earnings up to the time of his death | for a home, is competent on the measure of damages suffered by his next of kin. 2. Same; evidence.-In such case, It | is competent to ask a witness for defen- dant on cross-examination if. since the injury and at the time of the trial he was not working under the empioye whose negligence 1t is alleged caused the injury.
 g. Same; same.-where the defendants testimony tends to show that the engine causing the injury was moved in response to a signal from the intestate. it is com petent in rebuttal to show by witness that he was in a position to see 1fn- testate at the place he was alleged to have been when the signal was given and did not see him there nor any signal given. g. Same; argument of counsel.-Where a witness for dcefndant has been ex- cused from the rule, 1t is legitimate argu- ment for plaintiffs counsel to remark | that he "of all the witnesses should have 1 been put under the rule" TO- Same; argumentative charge; | charge assuming unprovon facts.-It is not error to refuse an argumentative charge or ope assuming facts not estab- lished.
 | Il. Same: charge upon effect of evil dence in dispute.-A charge upon the ef- feet of evidence which is in conflict is properly refused. | 12 Same; charge as to negative testi- mony.-A charge that one in a position | to hear a bell ring does not hear it, is no evidence that the bell was not rung, | is properly refused, since though mega | tive testimony, 1t is for the jury to deter l mine it's weight.
 13 Same; method of coupling cars: | absence of rule.-In the absence Of a
 rule at least. prescribing the method of | coupling cars. it is competent to show | the habit, custom and duty of empl 'yes
 in making couplings: and it can not be
 affirmed that the use of the hands is cut
 side the line of the employees duty. IA. Assignments of error not insisted upon.-This court will not consider as- signments of error not insisted on; but the same will be treated as waived. 15. Demurrer to complaint: error with | out injury.-Where a complaint in an action for injuries resulting in death contains several good counts, the action ! of the court below in everything de- murrer to another count, asserting the same cause of action, if error, is without | injury.
 Affirmed.
 Opinion by Mcclellan. c. J.