The Montgomery advertiser., 1903-04-18

O. k., ls admissiple, in connection with evidence es to the authenticity of the ts,ssrsT sa prSof f ,ss os: .s to .sto. sS. in the scope of his employment, and ss tending, by its assurance of safe track. to acquit him of negligence.
 2. Same: damages; capacity for work sessmsna sessa of dsmsses h'1 in 9srscnsl injury case. evidence is admissible as to plaint- iff's capacity before the injury. to work and earn though not in the immediate employment in which he was when in-
 3. Code, sec. i74s. subdiv. 5; track. : To bring case within Subdivision Of Section l74e of the Code. making the em- ployer liable to his employe for the neg or or control sof any part of the track of a railway" 1t ss not essential that the track causing the injury should pc hn- ished and in charge of the regular sec reached such stage of construction as to become the track of q railway" and has been adopted for use. though irreg- ularly. j there % Was evidence tending to show that the track in question. though nnfinished, had been used every two or three days for fifteen or twenty days, that during that time the construction foreman had charge of the track for the purpose Of 1t was beinE operated, though at times 1t was in charge of his assistant; that the construction foreman worked at the Ss on the ,oS dsy ot the oa .,sn tiffs train the track was all right and that he could use 1t to place cars there on. Held. In an action for damages for injuries caused by the dangerous condi- mans negligence was question for the jury.
 5. Charge requiring .peciai verdict as to separate counts.-A charge that 1T the for defendant under a certain, count of the complaint, ras a tendency to Tnislead the jury to believe that it is their duty to render a verdict with special reference to the particular coaat and ls not equiv. right to recover on that count.
 6. contribatory negiigence pleading and proof-Where a plea sets up one negligent act combined and coalescing with another as constituting cortributory negligence, the defense presented by the plea Is not established without proof of
 :. contributory negligence denned.- The sufficiency of the diligence of one by, the probable conduct of a person of ordinary prudence and 1udy- ment as 1t would 1ave been under like 
 Q. hS6h6chNc VI man; failing to observe dangerous condi-. ton of track.--Failure to observs the dangerous condition f 8 track may be negligence on the part of the person par. ticularly charged with the duty of look. ing after the tracks condition, though d like failure on the part of a brakeman on a train might not be.
 g. Same; assumed risks: obvious dan ger.-Unless the dangerous condition Of track is obvious. or is understood by the injured employe, he cannot be said to have assumed the risk of . derati- ment caused thereby.
 10. Charge; abstract; argumentative.- - A charge which is argumentative and contains several propositions. some of which are abstract is properly refused
 Il. Charge; qualifying special written charge The oral qualification by the court of a given special written charge, though unauthorized. will not affect re- versal. where the charge, but for such qualification. would be bad.
 Affirmed. Opinion by Sharpe, J.
 McwHoRTER V. SUPPLEMENTAL &
 RTrKTRT