The Montgomery advertiser., 1901-10-20

TIrTWILER COAL, COKE IRON
 COMPANY V. ENSLEN. Admr;
 Action by Administrator to recover pahn- Iaim
 ages for the alleged Negligent Nil, the
 ing of Intestate.-Appeal from Je
 Circuit Court of Jefferson. .a
 Pleading and practice; when 1uds- ,,ant unon demurrers insufficient.-The re- cital in a judgment entry that @ tro snt's demurrer to the complaint IS by the court heard considered and oVerruie9, constitutes no judgment upon such ue murrer and is insufficient to present suCIi ':N.L ruling to the Supreme Court for reVle" on appeal. .,,oo,+ ? Action by administrator for negligent killing of intestate; when charges prop erly refuned.-Where an action IS prousht by an administrator to recover oslnasss for the alleged negligent killing or plain tiffs intestate, charges which lnstrucs the jury that under certain hypothesiIeu conditions deceased could not recover, are wanting in clearness, ana so lhSorrect f .hn bi the use of the word "deceased for the word plaintiff. that the trial court Win not be put in error for refusing sueh charge. ~ ,.;,,;,,, of cbild. .. contrihutory negligence as defense.-6e tween the ages of and IA years, emu o Is prima facie incapable Of exerclslns judgment and discretion, and, therelort' incanable of being guilty of contrioutory negligence; but in an actlon to reco'ei for the alleged negligent killing or child between the ages Of and IA years
 
 contributory negligence imputed, ana such negligence shown in defense or the ac- tion.
 In an action by an administrator to re- cover damages for the alleged negligent killing tf the plaintiffs in+estate. who was a boy 13 years old, where the de- fendant pleads contributory negligence, the question as to whether or not the in testate was capable of exercising 1udg- ment and discretion, and had the .capac- ity to be guilty of contribute y negligence is one for the determination of the jury 5. Same; same; sufficiencv of evidence In an action to recover damages for the alleged negligent killing of boy IA years old. the mere fact that the sald 6oy was shown to be bright, smart and indus trious," without more, is insutflcient 10 overcome the presumption of the want or judgment and discretion, which his age prima facie implies.
 6. Appeals; rulings of trial court not re- viewed when not insisted on in argument of counsel.-The rulings of the trial court which are assigned as error on appeal, but which are not insisted on in argu- ment of counsel for appellant. will not be reviewed by the Supreme Court; and the mere statement in a brief that a charge asserts a correct proposition and should have been given" justifes the su- preme Court in refusing to consider the ruling of the trial court upon said charge.
 | Action to recover damages for neg ligent killing of child charge to the tury.-In an action by an administrator to recover damages for the alleged neg lgent killing of his intestate. who was a boy l3 years old where 1t Is shown that at the time of the killing the boy was IT the defendants mines where he was enl- ployed. and the plaintiffs testimony tend ed to show that he was in the discharge of the duties of his employment, while the defendants testimony tended to snow that at the time of the killing he was al a place in the mines where his duties dic not require him to he, charge whict instructs the jury that If they believe from the evidence that plaintiff intes tate was at place other than where his duties required him to be at the time he was injured: and that he had not been told by any one to whose orders he was bound to conform, to go to the place where he was injured then the jury must find for the defendant Is er- roneous and properly refused.
 S. Same. same.-In such case, charges which ignore the fact of the intestate' $ tender age and childish instincts and dangerous place but in proximity to oth. CT dangers, are erroneous and properly refused.
 Q Same; same In an action hv an ad ministrator to recover damages for tho alleged negligent killing of his intestate who was boy 13 years old where it i shown that at the time of the killing tn boy was at work In the mines of the de fendant. and the testimony for the plain tiff tended to show that he was injure while in the discharge of his duties, an that the service he rendered with tn knowle dge of the defendant. demande his presence at the place where the Tn fury was received. and the testimony fo the defendant was in conflict with thi testimony of the plaintiff, the general ai firmative charge requested by the defend ant was properly refused.
 10. Same; same; measure of damages.