The Birmingham age-herald., 1903-02-13
OPINIONS BY THE
 SUPREME COURT

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 gan-Aetlon by Employe to Recover
 Damages for Personal Injuries-Appeai
 from the City Court of Montgomery.
 l. Negligence; When Superlntendenee
 not shown; Employers Liability Act Where one to whom superintendenee is entrusted by his employer, gives an order to an employe who Is under his control and while he is obeying such order the superintendent punches or pushes such employe and by reason of such act on the part of the superintendent. the em- ploye. who was very ticklish or nervous threw his hand into a machine that was in operation, such act on the part of the superintendent is not an act of superln- tendence for the consequences of which the employer can be held liable under the employers liability act Reversed and remahded. Opinion by Mcclellan, c. J. Morning Star vs the state-Indietment for
 Carrying on the Business of Dealer in
 Pistols Without a License-Appeal from
 the City Court of Mobile
 l. Pawnbroker; Sale of Pistols Does not Constitute Him a Dealer Requiring Li- eense-One who has taken out and paid for state and county license as a pawn broker, has authority to sell pistols which have been lawfully pawned to him. and in making such sale he Is not carrying on the business of a dealer in pistols in such sort as makes 1t necessary for him to take out a license as required by the statute (Act of 1900-190i, D. 2630, subdivision 63) and the fact that such sale of pistols 1 lawfully pawned is made at private sale contrary to the provisions of the statute, l Code 3246, S24O does not convert the pawnbroker into an unlicensed dealer. Reversed and remanded. Opinion by Har- alson. j.
 Louisville and Nashville Railroad Com
 pany vs. Landers. Action Against Rail-
 road as Common Carrier for Injuries l to Cattle. Appeal from the Circuit Court of Calhoun.
 l. Claim Against Common Carrier. as- 1 signable.-A claim against a common car rier for the alleged breach of q contract of affreightment in not delivering freight uninjured, is claim for damages grow ing out of the alleged breach of con- 1 tract. and is, therefore, assignable with out regard to the statute authorizing as- signments In right of claims against rail- 1 road companies for injuries to property. l Code paragraph STD.
 1 2. Common Carrier Stipulation in Bill of Lading Limiting Carriers Liability l Binding.-The stipulation in a bill of lad i ing, in consideration of reduced rates of l freight. by which a shipper limits the carriers liability to damages resulting 1 from the negligence of the carrier or its agent, is founded upon sufficient con- sderation and is binding obligation be- i tween the shipper and carrier.
 1 3. Action Against Common Carrier; Admissibiity of Bill of Lading Contain ing Special Stipulations Limiting Liabil- l ity.-In an action against a common car 1 rier for injuries to freight, where the 1 complaint Is in the form prescribed in i the code for a suit against a common carrier on bill of ladng, a bill of lad l ing containing special stipulations limit 1 ing the carriers common law liability is admissible in evidence. and the introduc- ton of such bill of lading does not con stitute fatal variance between the com plainant and the proof. Nashville Chat l tanooga and St. Louis Railroad Company vs. Parker 12S Ala. 6S3, so far as it as- certs a contrary principal. overruled). | 4. Action Against Common Carrier; | Admissiblity of Evidence.-In an action against a common carrier to recover dam | ages for injuries to cattle, alleged to have been sustained while being transported by the defendant, a witness who is shown to have been a cattle dealer al of his l life and to have repeatedly shipped cattle over railroads, and especially oyer the l defendants road between the same points as those between which the plain i tiffs cattle were shipped. and further that he was familiar with loading and stransportng cattle. is competent to tes- i tify as to the value of cattle, and as to whether or not they could be loaded and transported with safety without parti- 1 tions in the cars, and as to what would i be a reasonable time for transporting the cattle between the points of con- signment and destination as shown by the 1 plaintiffs testimony.
 5. Same; Same.-In such case it is not competent for such a witness to testify as to what, in his judgment would have caused the injury to cattle if they had l been loaded and shipped as the plaintiff g evidence tended to show was the manner of shipment of his cattle, such testimony being a conclusion of the witness as 10 the fact in issue, which it was the prov lnce of the jury alone to determine.
 G. Same; Same.-In such a case the con versation between the plaintiff and the | defendants agent relative to the trans portatlon of the cattle and during the course of the transportation of the same, are admissible in evidence as part of the | res gestae.
 [ Common Carrier; Construction of Provision of Bill of Lading.-Where a bill of lading contains a special stipulation which requires the shipper at the point of destination, and before the removal of the cattle at the place of delivery, and be- l fore their mingling with the other cattle, | to give written notice to the carrier of any claim of damages, is a condition precedent to any right of recovery for in- 1 jury to said cattle during their transpor- tation, such stipulation is not to be strict 1 ly construed against the shipper, and the l shipper has a reasonable time after the removal of the cattle from the place of delivery, in case the injury Is not then discovered, in which to give such notice; and the fact that he has given the writ ten notice required before the removal of the cattle from the place of delivery does not preclude the shipper from the right of giving additional notice within a req sonable time of a claim for other injuries, which had not been discovered and which could not have been discovered at the time of the removal by ordinary dill ] gence.
 B. Action Against Common Carrier; No- tiee Required to be Given; Charge of Court to Jury.-In an action against a l common carrier to recover damages Tor injuries to cattle alleged to have been caused by the negligence of the defen- l dant during the transportation of such cattle, where the bill of ladng contained a special stipulation requiring notice of l injury before the removal of the cattle at the place of delivery, and before their mingling with the other cattle and 1t Is shown that the only notice given to the defendant pursuant to such stipulation was for cattle which had died before the removal of the cattle from the place of ! Ixu lw.o |. .xIa t..sG