The Montgomery advertiser., 1906-04-11
Head-Notes Qf the Decisions
 Of Alabama Supreme Court

SLOSS- S-sHEFFIELD STEEL AND IRON
 co. V. SMITH.
 (Decided May 30. 1905)*-(4e So. Rep
 91).
 l. Master and Servant Actions for Injury to Servant; Plea.-In an action for injuries to servant. plea that plaintiff negligently failed to properly drive or operate. the car of which he had charge as driver, and as a proxi- mate consequence whereof he was in- jured," was too general and subject to demurrer.
 2. Appeal: Assumptions Parties Where the complaint ayers an injury to plaintiff, who sues by his next friend, the Supreme Court must assume that plaintiff is in esse, where the only in timation that the injuries complained of proved fatal is in the plea which sets up as a defense a warning to plaintiffs intestate."
 3. Witness; Examination; Responsive ness of fAnswer,--Where a witness. was asked to state whether or not there was a custom or rule of stopping cars at a certain point before going down the hill, an answer that witness always stopped before he went down was prop erly excluded as not responsive.
 f. Customs and Usages; Evidence: Practice of Witness.---Testimony of a witness as to what he always did with reference to certain matter was in- admissible for the purpose of estab- fishing rule or custom.
 5. Master and Servant; Action for In- juries to Servant; Question for Jury Tn an action for injuries to a servant, evidence considered, and held, that 1t was a question for the jury whether or not plaintiff was guilty of contributory negligence. -
 G.. Trial; Instruction; Assumption of Facts.--In an action for Injuries to a servant. an instruction that if the jury believed from the evidence that plain tiff was at fault in seizing or taking hold of the car in an attempt to stop it, or prevent it or the team from col Hiding with an obstruction, the verdict should be for defendant, was properly refused, as 1t assumed as a matter of law that the action of plaintiff proxi- mately contributed to the injury.
 ', Master and Servant; Injury to Servant, Action; Instructions.-In an action for injuries to servant, an in- struction that If the jury believed from, the evidence that plaintiff, immediately after he jumped off the car, was not in danger of being struck or knocked down thereby. but that he caught hold of the car, or attempted to do so, and as a proximate consequence thereof was thrown down and injured, the yer
  proper, in that 1t failed to hypothesize negligence on the part of plaintiff.
 8. Same,--In an action for injuries to a servant an instruction that. if the jury "believed from the evidence that defendant ought not reasonably to have foreseen that what happened would probably happen as the result of it's conduct, it is not at fault, and you should find for the defendant" was misleading, in that it predicated the foresight on the part of defendant alone, without reference to its superin- tendent, through whom the negligence was expressly alleged to have oeen committed.
 g. Trial; Instructions; Ignoring Plead ings.-An instruction ignoring two counts of the complaint. without being confined in its effect to the other counts Is erroneous.
 10. Same; Exclusion of Witnesses Failure of Witness to Retire.-Where a witness under the employment of de- fendant was in court when trial was entered upon, and though the rule was invoked, he remained in the courthouse and heard plaintiffs testimony. there was no abuse of discretion in the trial judge in refusing to permit the witness to testify for defendant.
 II. New Trial; Absence of Witness riIisence.-In an action charging de-