The Montgomery advertiser., 1905-09-20

have ,esufted in death, and where mors | than eight months intervened between | the date of the infiiction of the m | juries and the death of the intestate' | and where it is a question or 1act as ,o | whether the said death was the resuis | of said injuries or was caused py ats- ease, evidence of deceaseds compialn's | of hurts attributable to the aie a negligence of the defendant maoe | throughout the time intervening pe- | tween the infliction of the injuries anu the death are properly admitted oy the court where such evidence Is connneo | by the court to the expressions In re- spect of current conditions to the ex- ciusion of narration of past conditions and of the accusation or the present conditions complained Of.
 | II. Same; evidence: inability of de- ceased to perform manual labor after he was hurt admissible.-In such case | testimony of the deceased's vile that | her husband was never able to do any properly admitted.
 12. Variance: what constitutes vari- ance between the averments and the proof.-One count of the complaint for personal injuries resulting in the death of the plaintiff's intestate. alleged that plaintiff's intestate was violently thrown from the train and so greatly l injured" etc, etc. The proof tended 10 show that said intestate voluntarily stepped of the moving train on to the station platform. lost his footing ana fell, receiving the alleged injuries Held: that there is not fatal variance between the allegations of said count
 and the proof. but that the evidence substantially supports the averment
 which is sufficient.
 IS. Contributory negligence; attempt
 ing to alight from moving train on
 the left foot, the train moving to the left, not negligence as a matter of law.
 Tt is not negligence as matter Of law for a person to attempt to leave nov ing train on his left foot when the train Is moving to the left. It Is a question of fact for the jury to deter mine whether or not under such condi- tions a man of ordinary prudence would have made the attempt.
 fl. Action for personal injury result
 ing in death: charges; abstract and argumentative charges should be re- fused-If the facts hypothesized in charge are abstract and the charge IS argumentative said charge is proper ly refused.
 IS. Same; same; when refusal to give proper charge error without injury.-lf a proper charge requested of the court by the defendant is refused but an- other charge to the same effect is given by the court at the request of the de- fendant the error is cured.
 Is. Same: same; when charges as of contributory negligence properly re- fused.-Written charges requested by the defendant upon contributory negli- gence which fail to hypothesize that said negligence in point of fact con- tributed to the injury complained of, are bad.
 IT. Same; same; what improper charge In reference to cause of death of injured person.-In an action for per- sonal injuries resulting in the death of the injured person, where the acci- dent took place in November, 1899, and the death occurred in July, 1900, a charge to the effect that if the jury believe from the evidence that the death of the plaintiffs intestate was caused directly by disease occurring af- ter April 1, 1900. then they must find for the defendant. Is bad, in that 1t fails to negative the fact that the dis ease was caused by or was the result of the accident.
 Opinion by Mcclellan. c. J.