The Birmingham age-herald., 1903-01-16
Opinions Rendered
 By Supreme Court

such judgment was plainly erroneous that it will be reversed.
 Affirmed. Opinion by Mcclellan, c. J. Alabama Great Southern Railroad Com
 pany vs. Brooks. Administratrix-Action
 against Employer for Damages for
 Death by Wrongful Act-Appeal from
 the City Court of Birmingham.
 l. Employer and employee; pleading In an action by the administrator of deceased employee against the employer counts in the complaint are sufficieE Ky definite and certain in the averment os facts showing negligence which show the fact of employment and the nature of intestates duties, the name of the negligent employee and that he was in charge of a locomotive or car causing the injury, and that his negligence con- sisted in ''negligently running car which was attached to said engine down to and against another car near or by which plaintiffs interstate was ctanding In the discharge of his duties, thereby crushing and killing the interstate"
 2. Plea sufficiency of; contributory negligence; averment of facts.-A plea is not bad because 1t does not state, in terms, that danger incurred by plain tiff was obvious, if the facts stated show that it was obvious.
 3. Same; averment of obvious danger.- In an action by the administrator of a deceased employee against his employer, to recover damages for negligently caus- ing his death, a plea averred that plain tiff's intestate voluntarily and unnec- essarily went in between two cars on defendants track when he knew or by reasonable diligence could have known that a ear or cars were approaching the ones between which he vent and that they would probably collide, and that thereby he assumed the risk of being injured when the cars came together" Held: That it was demurrable for failure to show danger in making the coupling and that 1t was obvious.
 4. Same; contributory negligence; as- sumed risks; pleadlng.-Said plea is not one of contributory negligence and fails to answer the charge of negligence made in the complaint, as it merely sets up that intestate assumed risk incident to his employment.
 5. Employer and employees; assumed risks-An employee, by entering upon the performance of his duties, whatever may be the danger incident thereto, does not assume a risk created by his employers negligence.
 6. Trial; scope of cross s-exannation- Where a witness has stated on direct examination that he heard the conductor tell the deceased to couple the air brakes he may be asked on cross-examination if he did not say to the conductor short ly after the accident that deceased was not coupling the cars, but was coupling the air as the conductor had ordered him to do, 1t tends to impeach or con- tradct the witness.
 '. Same-Where a witness had testified on direct examination that he had not ordered deceased to go in between the cars at the time he was hurt, and that when he went in between them he did so voluntarily, he may be asked on cross examination, for the purpose of discredit- ing or impeaching him. If the deceased did not say to him shortly after he was injured. that he was not trying to make the coupling. but was trying to attach the air. as he (witness) had ordered him to do, and if he (witness) was not silent when that was said
 8. Evidence as to duties of conductor.- Where a conductor is charged with neg ligence in causing the death of a brake man, it is proper to sustain an objection to a question to him. seeking to show that it was his duty, as soon as an ac- cident happened to telegraph at once the number and initials of the cars where the accident happened; as showing his duty only, without more, did not tend to prove that he performed the duty.
 J Genefdl cndfSei WHen property re- fused-The general charge is properly re- fused where the evidence as to the ma terial issues is conflicting
 Affirmed. Opinion by Haralson, J.
 Blackburn vs. The Huber Manufactur-
 ing Company-Bill in Equity to Fore
 close Mortgages-Appeal from the
 Chancery Court of Madison.
 l. Pleading and practice; appeals from decree on demurrer must be prosecuted within thirty days.-Under the provisions of the statute authorizing appeals from decree upon a demurrer to a bill ;n equity. Code 42D, the time allowed for the prosecution of an appeal from such a decree Is thirty days after the rendi- tion thereof; and if taken after the ex- piration of thirty days from the rendj- tion thereof, the Supreme court Is with out Jurisdiction to entertain such ar- peal
 Appeal dismissed. Opinion by Tyson, J. Western Union Telegraph Company vs.
 Mllsap-Action against Telegraph Com
 pany to recover Damages for Failure
 to Deliver Telegram-Appeal from the
 City Court of Birmingham
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