The Montgomery advertiser., 1903-03-19
GAYNoR, ADMRx., V. LOUISVILLE 6

NASHVILLE RAILROAD co. Action by Administratrix Against Rail- road Company to Recover Damages for alleged Negligent Killing of Plain tiffs lntestate.-Appeal from the Cir cult Court of Mobile.
 l. Trial and its incidents; negligence; erroneous for court to charge upon enect of the evidence ex mero motu.-In an ac- ton by an administrator to recover dam ages for the alleged negligent killing of the plaintiffs intestate, where the de- fendant pleaded contributory negligence of plaintiffs intestate and there was eVi- dence supporting such defense 1t Is error for the court to instruct the jury ex nero motu without the hypothesis of the tury's believing the evidence, that the evidence shows that the plaintiffs inte- state was guilty of contributory negll- gence, and that therefore, the plaintiff could not recover under the counts which charged simple negligence; such instruc- ton being charge upon the effect Of the testimony and being given without the request of either part, in violation of the statute Code, Sec. 2336. )The error in the courts giving such instruction is not re- moved or rendered harmless by reason of the fact that subsequently, at the request of the defendant the court gave the gen eral affirmative charge with hypothesis against those counts of the complaint which claimed damages for simple negli- gence.
 2. Negligence; when contrlbutory neg ligence shown; charges in reference thereto-In an action by an admlnistra- trix against a railroad company to re- cover damages for the alleged negligent killing of the plaintiffs intestate, where the defendant pleaded contrihutory neg ligence on the part of the intestate and the evidence showed that the intestate waa killed by being run over by a car on the defendants road while he was at- tempting to cross the track, and there was testimony tending to show that the fn fa to nF IvNO on the track where he was run over, without looking and listening for the ap- proacning trains. that the employees of the defendant did not become aware of his peril in time to have avoided injur- ing him, and were not guilty of negli- gence in not acquainting themselves with hls position sooner, and that without such negligence on his part the accident would not have occurred, such testimony shows that the intestate's own negligence was the proximate contributing cause Of the injury suffered by him; and charges which instruct the jury that if they be- lieve the evidence In the case they should find for the defendant under the counts of the complaint charging simple negi gence, are free from error and properly given at the request of the defendant.
 3. Negligence; wantonness: charges in reference thereto-In an action by an administratrix against a railroad company to recover damages for the killing of the plaintiffs intestate. who was run over by defendants train while attempting to cross one of its tracks, where some of the counts charge wantonness on the part of the defendants employees, and the only testimony tending to support such count was that of one or two witnesses who testified to the very rapid movement of the train over the street at the cross ing where the accident occurred, and there was much other testimony to the effect that the speed of the train over the crossing was at the rate of about four miles an hour, charges which in- struct the jury that If they believe from the evidence that said train was being run at the speed of about four miles an hour, they should find verdict for the defendant under said count, are free from error and should be given.
 1. Same; same; same.-In such a case charges which instruct the jury that If they believe from the evidence that the defendants servants were not guilty of wantonness or reckless indifference to probable or even possible disastrous con- sequences in the operation of the engine and cars over the street at the time of the infiiction of the injuries upon the plaintiffs intestate, are free from error and properly given at the request of the defendant.
 5. Evidence: when rulings upon evi- dence without injury.-Where in the trial of a cause there were many exceptions reserved by the plaintiff who was cast in the suit, and the rulings of the trial court on the admissibility of testimony but 1n appeal 1t appears that if all the testimony offered by the plaintiff and re- jected was allowed to go to the jury, and If all the testimony admitted against the plaintiffs objection was excluded the cause before the jury would not be ma terially different in any respect from what 1t Is as presented by the record on appeal such rulings upon the testimony are without prejudice to the appellant and will not be reviewed by the Supreme Court.
 Reversed and remanded Opinion by Mcclellan, C. J.