The Montgomery advertiser., 1905-01-28

SOUTHERN RY. co. vs. BONNER Action against railroad company by
 administrator to recover damages
 for alleged negligent killing of in
 testate.-Appeal from the Circuit
 Court of Jefferson.
 l. Evidence when secondary evil dence of testimony of absent witness not dmissible.-Evidence as to wha tan absent witness testi- fled upon a former trial of the same case. is not admissible when the only predicate for the admission of such evidence Is the testimony of a witness that he did not know exactly where the absent witness lived; that he had seen him three or four months before the trial in the county where the trial was being had. and said witness stated to him that he was at work in Texas; that he knew said witness was living in Texas because he then told him he was living there.
 ?. Action against railroad company for death of plaintiffs intestate; admis- sibility of evidence.-In an action against a railroad company to recover damages for the death of plaintiffs in- testate, which resulted from a collision between the engine on which the in- testate was engineer. and an engine on
 
 occurred at a crossing of defendants road with the road upon which the paintiff's intestate was operating the engine, where the testimony is in con- fiict as to whether the intestate's en- zine stopped within 100 feet of defen- dant's track before going upon the crossing, or ran at a rapid rate upon said crossing without stopping. it Is competent for a witness who had testi- fled about the speed of the intestate's train at the time of the collision, to further testify as to whether or not such speed was the usual rate of cross- ing another railroad after the train had stopped.
 Same; same.-In such a case, where it is shown that the collision occurred at night. it Is competent for an experienced locomotive engineer, after having been examined about the effect of the headlight such as was on plaintiffs lntestate's engine at the time of the collision, to further testify as to whether or not, if the defendants train was approaching the crossing the light from the intestate's engine, thrown across such crossing within 100 feet thereof could be seen by the en- gineer upon the defendants engine.
 4. Same: Same.-In such a case, 1t is not competent for witness for the defendant. who was a brakeman on Its train that collided with the engine upon which plaintiffs intestate was. to testi- fly in reference to the intestate's train; T thought they would surely stop for the crossing;" "our engineer must have put on his air just about the time they struck us:" the collision of the engine after the accident and the appearance of the front of intestates engine clearly showed that they struck us. and struck us a very hard blow"
 5. Railroad crossings; duties of en- gineer.-The provision of the statute imposing duties upon engineers and conductors running trains upon tracks of two railroads which cross each other, when approaching such crossing. that they should stop. and before proceeding over said crossing they must know the way to be clear" while requiring knowledge that the crossing is not only free from immediate obstruction, but free from danger of such obstruction as ought reasonably to be expected, such provision does not, however, re- quire said employees to know that "the way will certainly remain clear against all after occurring extraordinary, un- anticipated and unascertainable hap penings"
 6. Action against railroad company AOA hiAAiiiB GU an action against a railroad company to recover damages for the death of plaintiffs intestate which resulted from collision between the engine on which the intestate was engineer and an en- zine on the defendants road at a cross- ing of its road with the road upon which the intestate's engine was run ming, where the cause Is tried upon two counts of the complaint. one charg- ing simple negligence, and the other wilful or intentional negligence, and where the evidence affords an inference that defendants servants, when run ming its train to the crossing, where aware of the peril to which their action exposed those on the engine operated on the other road. in time to have stop ped before the collision at the crossing. the general affirmative charge in favor of the defendant as to each of said counts of the complaint Is properly re- fused.
 [. Same; charge of court to jury.- In such a case, a charge Is erroneous and properly refused which instructs the jury that charge you. gentle men of the jury, that if you, believe from the evidence that plaintiffs intes- tate stopped within 100 feet of the crossing, he cannot recover under the fourth count of the complaint, if the