The Montgomery advertiser., 1901-08-25
HEAD NOTES OF THE DECISIONS {
 OF THE ALABAMA SUPREME COURT.
ANAA s~~.~ . . . 2

a.es for the alleged. wrongful election sl Ile pialntiff from a tram where it
 $ averred in the complaint that the de-
 nIants, as receivers, were operating
 rahroad upon which the said train
 was run, and that the plaintiff was eJected from the train by employees or agents of the defendants. as such re- ceivers, and the general issue and spe- cial pleas of contributory negligence are pleaded, in order for the plain tiff to recover. he must prove the averments of the complaint that the defendants were receivers of and operated said road and had control thereof, and that the persons who elected the plaintiff were in the employment of the defend ants as such receivers. The plea of the general issue put. these material aver ments in issue, and the fact that a spe- cial plea of contributory negligence was filed. did not waive the necessity for proof which the plea of the general issue cast on the plaintiff. B. Plea of the general issue; waiver lSby defendant of formal proof of fact within the issue; question for the court The plea of the general issue puts in issue all the material allegations of the complaint, and puts upon the plaintiff the necessity to prove them, and while the defendant may, by his course of conduct on the trial of the case. show that he does not really controvert a. particular fact which Is directly within the issue; but valves formel proof thereof, the question of whether or not the defendant has so waived the neces- sary proof. must be determined by the court, and Is not within the issues made by the pleading. which alone are triable by jury. (McKay & Roche vs. Southern Bell Telephone Co.,, Ill Ala, O rn NN~ttf otr.lA overruled).
 {. Railroad company; right of pas sengers; not lost by ejectment from train-Where one who has purchased a ticket and takes passage upon a train operated upon the railroad, and that the ticket, on its face, entities him to be carried on the train on which he was riding, and he offers such ticket to the conductor, such person does not lose his character as a passenger by being elected from the train by the conduc- tor, nor Is the conductor authorized. after such election. to disregard any duty he owed such person as a passen- ger had he not been elected; and abu- sive and insulting language, used by conductor towards such person while he was s're-entering the train after his election for the purpose of continuing his journey, constitutes part of the res Sestae or the objection and is admissf- ble in evidence in an action to recover damages for being elected from the train.
 5. Same: same: admissibility of evi. dence in action to recover damages for etection-In an action by a passenger to recover damages for his alleged wrongful election from a railroad train. on which he had taken passage, where it was shown that the plaintiff offered the conductor ticket stamped of the date the plaintiff took passage upon said train, and that the conductor. upon looking at the ticket, stated that it was out of date, and it was further shown that the stamp upon said ticket, while dim, was legible. and was So when the ticket was introduced on the trial, in order to show that the stamp date was legible on the date the plaintiff at tempted to use the ticket, and that it was then in practically the same con- dition as when used on the trial, it Is competent and permissible to prove by third persons that they saw the ticket in plaintiffs possession on the day he was elected from the train, and that 1t bore the legible stamp on that day.
 Reversed and remanded.
 Opinion by Sharpe, J.