The Montgomery advertiser., 1903-08-22
HeAd-Notes Of Me Decisions
 Qf Alabama Supreme Court.

THE WESTERN RAILWAY OF ALA
 BAMA V. ARNETT.
 Action against Rai.-oad Company by
 Employe to Recover Damages Tor
 Personal Injuries.-Appeai from the
 City Court of Montgomery.
 l. Appeal; rulings of court not review ed and not insisted on in argument.-- On an appeal where counsel for the ap- pellee does not. in his argument, insist upon certain rulings of the trial court it will be presumed such rulings are waived, and they will not be reviewed.
 g. Same; effect of general assignment of error.-Where in assigning errors upon rulings of the court in sustaining demur- rers to several pleas. the assignment of error is not based upon these rulings severally. but upon them as a whole, if any of the grounds of the demurrer to either of the pleas was properly sus- tained, the ruling of tn. court in sustain ing the demurrer will be upheld.
 3. Fraud; written instrument vitiated thereby.-Where an execution of a writ ten Instrument is obtained by misrepre- sentation of it's contents. and a party is induced by said fraud to sign an in- strument which he did not intend to sign, the party so defrauded can avoid the ef- feet of his signature because of the fraud practiced upon him, notwithstand- ing the fact he may have neglected to read the instrument or have 1t read to him.
 1. Action against railroad company: sufficiency of replication charging fraud in procuring release set up by special plea.-In an action against a railroad company by an employe to recover dam ages for personal lnjurIes, where the de- fendant by special plea sets up that be- fore the institution of the suit the plain tiff. for valuable consideration. com promised and settled all claim which he had against the defendant for such in- Juries. and the receipt and discharge is set out in full in such pIea, a replication to such plea which ayers that settlement. discharge and compromise set out in the plea was procured by the misrepresenta- tion of the defendant and the facts con- stttuting such alleged fraud are set out at length therein, is a sufficient replica ton to avoid the defense set up, and is not subject to demurrer.
 5. Same; sufficiency or rejoinder.-In such case rejoinder which sets up that plaintiff ought to have known the contents of such release set forth in de- fendant's plea No. S." and although there was such duty on his part to know it's contents the ''plaintin .ias never offered to return to the defendant the consid- eration received by him for the execu- tion of said release. IS sufficient and subject to demurrer.
 S. Same; sufiiciency of plea.-In an ac- ton against a railroad company by an employe to recover damages for injuries sustained by being thrown from a hand- car. a plea which sets up that plaintiff proximately contributed to the injury complained of in that after releasing his hold upon the lever which he had been assisting in propelling. ne "squatted or stopped down and took hold of a certain beam or brace on sucn car, which he knew or by proper diligence could have known was loose or fnsecurefy fastened, and By reason of such defect in said brace or beam plaintiff fell or was thrown from the car and received the in- Juries complained of," is insufficient and subject to demurrer in that 1t does not postulate that the plaintiff was negli gent in taking hold of the said brace or beam.
 2. Action against railroad company by an employe; admissibllity of evidence In an action against railroad company by an employe to recover damages for personal injuries alleged to have been sustained by being thrown from hand car, and alleged to have been caused by the negligence of the defendant, where the defendant sets up as defense the contributory negligence of the plaintiff. and to sustain such defense introduces evidence tending to show that just be- fore the injury the plaintiff had been as- sisting in propelling the hand-car on which he was riding by means of a lever. and that he was standing with his back towards the direction in which the car was going, which was in violation of the instructions of the section foreman, 1t is competent for the plaintiff. on being ex amined as a witness. to testify as to whether the position he was occupying was the usual or customary position for a man to occupy in propelllng the car.
 G. Same; same.-In such a case where, in addition to the facts stated in such case. there was also evidence for the de- fendant tending to show that the correct position for the plaintiff to have occu- stand behind the lever, it is not compe- tent for the defendant to ask the section foreman if it was possible for the plain tiff to have fallen as he did if he had been behind the lever," such question calling for a conclusion of the witness. 9. Same; same.-In such a case it Is competent on cross examination of the section foreman who had testified to his having previously given instructions to the section hands to stand behind the lever when propelling a car, to ask such witness If he made any objection to the way in which the section hands were propelling the car at the time plaintiff was injured.
 10. Same; same.-In such a case 1t is not competent for the defendant to ask the section foreman as to whether he lever gave them (the section hands) any orders on any other day?" or when did you give them any instructions?' such questions not being limited in their scope as to the matter at issue.
 Ii. Action for negligence; where gen. eral affirmative charge should be given. In an action against railroad company by employe to recover damages for per sonal injuries alleged to have been caused by the negligence of the defend- ant. where one of the counts of the com plaint fails to state a cause for action and the negligence alleged in the other counts is not sustained by the proof the general affirmative charge should be giv- en at the request of the plaintiff. Reversed and remanded
 Opinion by Haralson, J.
 SOUTHERN CAR & FOUNDRY CO.,, V. JENNINGS.
 Action by Employe Against Employer to