The Montgomery advertiser., 1901-12-29

MEMPHIS AND CHARLESTON RAIL-
 ROAD co. v. MARTIN, admr., etc. Action against a railroad company by the alleged negligent killing of in-
 tystste.-Appeaf from the Circuit
 Court of Madison.
 l. Pleading and practice; suficiency of Judgment upon demurrer-The recital in pleadings are overruled or sustained, as the case may be, without the words of adtudgfuene by the court, are insufficient as a judgment upon such pleadings, and will not be reviewed on appeal.
 ?. Same; same-Bench notes or mem oranda or statements by the clerk, rela- tive to the fling of denyurrers to cer- tain pleadings,: asd the courts ruling in relation thereeDs jo not constitute the Judgment of the trial court upon such pleadings, nor do they constitute any evidence for the Supreme Court of any action taken by the court below upon sition of the demarrers to such pleadings, and. therefore, cannot be considered on appeal for any purpose.
 8 Same; effect of taking issue upon immaterial plea-Where the plaintin takes issue upon pleas which present improper or immaterial issue. upon the proof of such pleas the defendant Is en- titled to judgment; although by reason demurrers would have been sustained if properly interposed.
 1. Contributory negligence; what nec- essary to constitute a defense--ln an ac- ton against a railroad company to re- of the defendant, contributory negli- gence of the plaintiff, which will bar his recovery, must be such as that 1t caused the injuries complained of, or proximateiy contributed thereto; and where the negligence of the plaintiff was merely the cause of a condition upon which the negligence of the defendant or it's employers. in falling to use the means within their power to avoid the injury after becoming aware of the plaintiff s peril. operated as the sole. proximate cause of the injury complained of. such negligence on the part of the plainun will not prevent a recovery.
 5. Same; when recovery can be had notwithstanding proof thereof; question for the jury-In an action by an admin istrator against a railroad company tc recover damages for the death Of his 1n- testate. alleged to have been caused by the negligence of the defendant if the evidence shows that the deceased was guilty of contributory negligence, the plaintiff may recover, notwitnstanoing that the defendant, after becoming aware of the intestate's peril in time to avoid inflicting the injury by the proper use of preventive means at ms com mand, yet inadvertently or negiigentiy failed to resort to such means; ana there are diverse tendencies of the eyi- deuce in reference to these facts, the question is properly submitted to the jury. r road company: when question as 10 wanton or willful negligence should pc referred to the jury-In an action oy an administrator against railroad com pany to recover damages for the al legged negligent killing of the plaintin intestate, who was run over by one or the defendants trains at public cross ing where the testimony as to the speed of the train was in confiict, put if is shown that the accident occurred at a uublic crossing of the defendant track in a town of 800 inhabitants, and that the people crossed at that place in great numbers, which facts were known To the servants of the defendant wno were fin charge of the train, these facts do not constitute wanton negligence as matter of law; but the question as 10 whether they constirJte wanton negn- gerce should be submitted to the Jury for its determination, from the consloer ation of such evidence, together with inc further evidence tending to show that the defendants servants were reck- iessIv indifferent in their conduct as to the intestate's safety, after they olsco'- cred her peril. :,
 '. Appeals; when assignments of er- TOT not considered-Where counsel TOT appellant, in his brief. does not argue or discuss certain assignments or error " hich are based upon the rulings or the trial court. such assignments or error will on appeal, be treated as waived and will not be reviewed by the appel late court.