The Montgomery advertiser., 1901-09-07
WOODWARD IRON ce. V. HBRsDoN.

N0oDWARD HON C0. V. hHHNDoN' Action against Employer by AdmInistra-
 tor of Deceased Employe to Recover
 Damages fer Alleged Negligent Kill
 ingI1Appeal from the Circuit cours 1. Action for negligence; when ques- ton of contributory negligence one for Lin an action by an administrator of Il deceased employe Of defendant to recover damages for the death of his intestate. ensine % coiliding with one of its hand cars upon which plaintiffs s intestate was riding, the following facts were shown: WsRn yasRs S ne cas Sy the ias of often covered the said track. and at the
 s Ss of sos the snssh of tks
 distance of 2so or 300 yards. The switch or yard engine was used in switching ears to and rom the n;n G0Ee osSnS, Snt she shs yard, but was likely to be passing on the track by the. coke ovens at any time. and thsse facts were known & tc ants employment as foreman of the track men. Plaintiff $ intestate, with the section hands, who had been at work on its min,s. boarded the hand-car imme. trains passed goirs to the yard. and fSi-i which the incoming train and the hand car were to pass. there was g curve n prevented the plaintiffs int.,stGte from seeing said train, and said train passed out of sight, went through the smoke and onto another track, beyond the coke ovens. The yard engine. which was be- ycnd the switch at which the coal train passed to the side track from the track by the coke ovens came down the traen the track covered and obscured by smoke, and when about midway the sns dsC Sd the . soss Sanacsr which pS if's intestate was riding: The hand-car vas running at ten or twelve miles an hour, and plaintiffs intestate did not stop 1t on entering the smoke. or send a flag man forward through the smoke to give warning of it's approach. The evidence as to the distance between ,ine,nn 5ne nncGming n y the time the former entered the smoke, was conflicting; but there was evidence from which the jury coa,d s,i infer that hat hand-car was to said train. Tser. was also evidence tending to show that the engine, which ,collided with the hand-car ter the incoming train went onto the other. track, and proceeded down the trackjnto the smoke at a speed of from 6 great deal faster than 1t was accus- toned or required to run along there; and that if saiG engine had come down miles an hour. which it was accustomed to do, the hand-car would have gotten through lhe smoke to a place of safety, been averted. Held: The question of the plaintiffs intestate having been guilty of negligence which proximately contrib. the fury; and that, therefore, charges to the jury, which pretermit all reference to the incoming train which tho hand car was or sno wnifh fhat sSs yard engine came down the track much more rapidly than was customary and much Tn excess of it's prescribed rate or speee' .pr pr jury the evidence from which they could have inferred that the plaintiffs iIte- state knew low close his hand.car was entered the smoke, or which deprive the jury of the right to consider the cyl dence tending ta show that piaiintim in ing train to have gotten through the smoke without injury, if the yard engine had been run at its usual speed, ana eration of such tendencies of the eW . ~6erlce, instruct the jury as matter or law that plaintiffs intestate was snhty 2. contributory negligence are erroneous and properly refused.
 g. Same; same.-1n such case, a charge which instructs the jury that IT the plaintiff; intestate at the time Of the collision krew or was informed that the switch engine was liable to De pass ing along the track where the smoKe axe not see and could not know how far the incoinin. train was ahead or 5ne hand .cX- wken he entered the smoke; then pTai ltifs il ttstate was guilty or contribuko-y negligence in not stopping before ent sring the smoke ana scnolng fiagman forward. asserts a correct prop osition of law and shouio nave been
 8. Same; same; when general affirma- tive charge properly refused.Zin such track on which the hand-car was ap- preaching there was track upon Wnicn the sw1tcn engine might have been stand on to the main track as soon as the incoming train passed, and gone imme- diately into the smoke. from which a ficient to authorize the giving of the general affirmative charge In behalf of the defendant. Inasmuch as the switch eIaSintir,'S ShSii inteState @ was guilty of negli- eence only by relation to that track ana a likelihood that the switch engine would be on it, such negligence olo not con
 Same: same.-In such a case, a charge which pretermits any re1erence to the unusual speed of the switch engine in going down to or into the smoke, is erroneous and properly refused.
 5. Same; same: In such fSse' fSse' .js you you believe from the evidence that the switch engine at and before the coinsion was Suining at its customary speed, you correct proposition and should be given.
 G. Pleading and practice; preparation of bill of exceptions.-ln the preparation S,,caI and its tendencies should be set ont in narrative form. and the provision of the rule that bills of exceptions should eXtenso when the general affirmative charge has been asked, does not contem- plate or authorize the setting forth there tions and answers, but only that the Tti testimony % shall be stated in full and In narrative form; and therefore, hen m there is a paIpable disregard of the rule by setting forth therein stenographlc report of the questions and answers oL witnesses, making the bill of exceptions unduIy prolix, 1t should be stricken from the record.
 Reversed and remanded.
 Opinion by Mcclellan. c. J.