The Montgomery advertiser., 1905-10-02
WESTERN RAILWAY OF ALABAMA
 va RIrSsELIA

wEsrERN RAILWAY OF ALABAMA
 vs, RUSSELL
 Action of Damages for Personal InJu.
 rfes.--Appea1 from the City court of Montgomery.
 1. Appeal. assignment or error waiver.-Assfgnments or error not s,, ,n sisted upon in brief or argument VIII not be considered on appeal; and where all that is said. is that the assignment ia insisted on, and a reference IS made to the record showing the matter up- on which it is based. this will not be treated as an insistence upon the as- alignment.
 3. Same; pleadinss ard practice; CT. TOT without Injury.--Where matters or defense are set up in special pleas, the full benefit of which are available un- der the general issue. which Is also pleaded, the sustaining of demurrers to such special pleas. if error. Is error without injury.
 3. Negligence; employer and em- ploye: assumption of risk; contributory neEiirence.- do not assume the risk Of defective track conditions They have a right to assume that the track is safe. It is not their duty. but the employer to keep 1t fin proper con ditfon. The acquaintance which train men are required to have with the premises is more an acquaintance with the line, so to say. than with the track
 4 Same; same; san1e.-The master does not discharge the duty cast upon him by giving Q general warning oi danger, but he is bound to so point out and instruct the risk that the servant may appreciate what he ise about to en- counter, and know how he may avoid 1t. eE
 5. Same; pleading; contributory neg ligeace.--An averment in plea to complaint claiming damages for per sonal injuries, that the person injured an engineer on a locomotive. so care lessly and negligently operated his en- zine and train as to run into wash out, which could have been avoided by the use of ordinary care and diligence, is the mere statement of the conclusion of the pleader. and Is not ufficient as q plea of contributory negligence, where the facts must be averred.
 6. Negligence; employer and em- ploye; assumption of risks.--Before ft can be said that an employe assumed risk connected with his employment. tt must appear that he was warned of the particular danger. or knew of the dan- ger, or that 1t was open and patent, to the employe. consistent with his oth- CT duties.
 [. Same: same; set-off of damages Ly defendant caused by contributory negligence of plaintlq.--In an action for damages, alleged to have been caused by the negligence of the de- fendant, the defendant cannot plead set-off for damages which he sustained by reason of the contributory negii- Rence of the plaintiff.
 8. Same: saine.--In an action for damages for injuries caused by defects in q railroad which the defendant was bound to keep in repair. a plea that the defendant did not know of the de- fects in ttime to give warning thereof. is insufficient. as 1t fails to show that any effort had been made to inform itself as to the condition of the road.
 9. Appeal; bili of exceptions; exten- sion of time for signing.-When the time in which bill of exceptions is to be signed Is extended. such extension must be made by the judge, and not by the court.
 Afirmed.
 Tyson T.