The Montgomery advertiser., 1904-05-02
ALABAMA RAILWAY co

I NORTHERN ALABAMA RAILWAY co. | V. MANSELL. Admr.
 Action by administrator against rail- road company for alleged negli- gent killing of employe.-Appeal from | the Circuit Court of Franklin.
 | 1 Action by administrator against railroad company for negligent killing of
 intestate: sufficiency of complaint.-In an action brought by an administrator against railroad company to recover
 damages for the alleged negligent killing of. his intestate, who was an employe of l the defendant when brought under the statute which gives to personal repre- | sentative the right to maintain an &C., | tion for negligence causing the death of his intestate. if the intestate could have himself maintained an action for the l wrong, if 1t had not resulted in death tCcde Section 20, a complaint is not
 subject to demurrer for failing to impure negligence to a fellow servant of the intestate: since the liability which may exist under the statute Is determnable bv the rules of the common law. which permit a servant to recover for injuries caused by the wrongs of the master.
 2. Action against railroad company; admissibility of evidence.-In an action l by an administrator against a railroad company to recover damages for the all legged negligent killing of plaintiffs intes- tate who was an employe of the defend ant where 1t Is shown that the intestate's death was caused by being struck by a
 stock gap while he was leaning out from a train. and the contention of the plain tiff was that the stock gap was too close to the track and was negligently con-
 structed by having wire attached there to. and the evidence was in some con- | fist as to whether the deceased was first struck by plank of the stock gap or was caught by the wire, it is competent for the plaintiff to introduce in evidence the trousers which were worn by the deceased when he was injured, and which were torn. as being relevant to such issue.
 B. Evidence: introduction of testimony in rebuttal within the discretion of the | trial court.-When, in the trial of case, after the defendant has rested in the in- troduction of evidence the plaintiff intro-
 duces witness in rebuttal, the question
 as to whether or not the testimony of
 such witness is in rebuttal. is Addressed to the unrevisable discretion of the trial
 court; and the overriding of an objec- ton to such testimony. upon the ground that 1t was not In rebuttal, will not be reviewed on appeal
 4 Same, cross examination.-It is per-
 missible. in the cross examination of a witness, to ask him a question which has a tendency to contradict the testimony given by him on direct examination. 5, Duty of railroads as to construction of roadway; usage by well regulated rail- read; charge in reference thereto.-While
 In determining whether the railroad com
 pany in the construction and maintenance of it's roadway has exercised due care. 1t is proper to consider the usage prevail ing on other well regulated railroads, all
 railroads not required to conform to one
 standard. and the duty of one railroad company in reference to the care in the construction and maintenance of It's rail-
 way, may be performed by providing
 roadway not in conformity with such usage; and, therefore, in an action against
 railroad company for damages alleged
 to have been caused by defective con
 struction and maintenance of its roadway.
 a charge is erroneous which. assumes
 that. subject only to the defense of con- tributory negligence, the plaintiff would be entitled to recover. if the track and
 roadway. at the place of the accident
 was not such as were provided on well
 regulated roads generally. and that the failure to have it so was the proximate
 cause of the plaintiffs injury.
 Action against two railroad com panies for damages to employe; allegata and probata must correspond; general af- frmative charge.-WheYe an adininistra- tor sues two railroad companies to re- cover damages for the alleged negligent killing of the plaintiffs intestate, and the complaint alleges that the intestate re- ceived the injuries resulting in his death while in the service and under the con trol of both of the defendants, and the