The Montgomery advertiser., 1904-10-24

IS wanting In consfderation.
 (. Statute of frauds; acceptance of draft or order not without statute.-An acceptance Of draft or a written or- der Is not a collateral promise to pay the debt of another within the statute of fraud, Since it Is between the ac- ceptor and the payee. it is an original and direct undertaking.
 Reversed and femahded,
 Opinion by Haralson, J.
 MOBILE. JACKSON & KANSAS CITY R: R. CO V. BRoMBERG, Admr. sc. Action against Railway Company by
 Administrator for Alleged Negli-
 gent Killing of Empioye Appeal
 from the Circuit Court of Mobile.
 Fl. Appeal: effect of general assign ment of error.--N, -.ere in assign ing erors upon the rulings of the trial court, in everything demurrers to each of several counts of a complaint. the assignment of error Is not separately based upon such rulings severally. but upon them as whole, unless there was error in everything the demurrer to each and every count of the complaint. the assisnment of error is bad and unavailing on appeal.
 2. Same: same.-Where in assign ing errors upon the rulings of the court in sustaining demurrers to several pleas, the assignment of error Is not based upon these rulings severally. but upon them as whole, If any of the grounds of the demurrer to either of the pleas was properly sustained. the ruling of the court in sustaining the demurrer. will be upheld.
 ss3. Negligence of railroad company in falling to use, automatic couplers. as provided by Act of Congress; sufi- qfannu nF auI Int against fairoad company by an ad- ministrator to recover damages for the alleged negligent killing of plaintifr's Antestate, who was in the employment of the defendant as a brakeman. and was killed while in the act of coupling two cars together in the discbargee of his duties. where the alleged negligence consisted in a failure on the part of the defendant to comply with the pro- visions and requirements of the Act of Congress approved March 2, 1898, requiring railroads to equip their cars used in interstate commerce, with auto matic coaplers CT U. S. Stat. at large, p. 631), 1t is not necessary to aIlege in the complaint that at the moment of the Injury, the cars were actually nov ing freight or passengers in the trans portation of interstate commerce: and a count og the complaint whicM alleges that the plaintiffs intestate was killed by being crushed between two cars while trying to couple them (which were being made tip in train of the defendant for interstate commerce. g sufficiently shows that the ears were used for interstate commerce, so as to bring them within the provisions of the act of congress.
 {. Contributory negligence; insuffi . ciency of piea.--In an action to re- cover damages for the alleged neg ligent killing of plaintif's intestate. a plea which ayers that the negligence of the plaintiffs intestate proximately contributed to said injuries as alleged in said counts" is insufficient as a plea of contributory negligence, and sub ject to demurrer.
 5. Contrtbutory negligence; duty of employe to adopt the less dangerous way Of performing an act--In the dis charge of his duty an employe is re- Quired to use ordinary care and pru- dence to avoid injury, and when there are two ways of discharging- his duty, he must select that way which Is safer, or less dangerous. provided he can per- form his duties as we'll and efficiently in one way as in the other.
 6. Action for negligence: sufIielency of replication to plea.--In an action against a railroad company by an ad- ministrator to recover damages for the alleged negligent killing of his intes- tate. who was at the time Of his in- juries in the defendants employment and engaged in trying to couple two cars In the discharge of his duty as brakeman. where the defendant by sev- eral pleas sets up as a defense, that there were other and different ways attended with less danger in which the coupling might have been made by the plaintiffs intestate without go- ing in between the cars as he attempt ed to do, and that he was guilty of neg 1igence which contributed to his injury in going in between the cars, instead of adopting one of the other means suggested in the pleas, a replication of the plaintiff to said, special pleas, which ayers that the plaintiffs intes- tate could not have performed his duty as a brakeman in making said coup ling in the manner indicated in said plea, as well and as effectively as he could have performed 1t by going in between the cars. as he attempted to do. Is a sufficient response to the aver ments of the pleas, and is not subject to demurrer.
 q. Action against railroad company to recover damages for negligent kill ing of employe; Safety Appliance Act of Congress An action can be main tained by an administrator against a railroad company in this State to re- cover damages for the alleged negIi- gent killing of the plaintif's inttestate, who was ir the employ of the defend- ant as brakeman, and was killed