The Montgomery advertiser., 1906-03-13

operated locomotive on said roao. ~
 or near certain place In certail | county. that by reason thereon it ra' against plaintiffs cows, was sumcient' | ly definite in it's allegations or the tinhs
 and place of the injury.
 (Ed Note.-For cases Tn point' scs Vol. 41, Cent Dig. Railroads Sectior k1551).
 2. Same--In action against radlroac for killing cattle. a complaint allegine
 that one of the defendants servants, in | charge of a locomotive, so negiEenti. l operated such locomotive that IL strucs | plaintiffs COWS, was sufficient In us al legations of negligence.
 (Ed note--For cases in point, see vol 41. Cent Dig. Railroads, Sections lbol | 1865 1566).
 8. same--In an action against rail, road for the Killing of cattle on tht track 1t is not necessary TOT the conn plainant to ailege the name Of inc em' | ploye who was in control of the ioco' motive which struck the cattle. r (Ed. Note.--For cases in point, set Vol 41, Cent. Dig. Railroads, Section 1562).
 l 4.--Appeal; harmless error; rulings on pleading.--Sustaining q demurrer stc a plea setting up matters available un' | der an accompanying plea Of the gen eral issue is harmless.
 l 5. Damages; injuries to animals; evil dence.-In an action against railroad for killing cows used only as milk and butter producers in the prosecution ol a daily business, evidence of the yfelt of milk and butter by the cows Killed is admissible on the issue O. the mar ket value of the animals.
 6. Evidence; conclusion of witness 1 In an action against a railroad for the killing of cattle on the track. testimony | of the engineer, in charge of the loco motive which killed the animals, that he did not have time to make any eff l fort to prevent the killing, was but l the conclusion of the witness on a question of fact, and was properly ex- | cluded.
 2. Railroads; injuries to cattle: plead. ing; variance.--In an action against a railroad for the killing of cattle on the track. where the negligence alleged was in the operation of the train, testimony as to the equipment of the train was properly excluded.
 (Ed. Note.--For cases in point. see Vol Al, Cent Dig. Railroads, Sections 8. Same; negligence of Railroad.--It is negligence for railroad to operate a locomotive and train of cars at night at so great a rate of speed that 1t Is impossible to stop the train within the distance that the locomotive headlight Eliminates the track.
 (Ed. Note-For cases In point, see Vol. Al, Cent. Dig. Railroads, Sections 14s4-I4ss).
 9. Damages; killing cf cattle; in- structions.--In an action against a rail- road for the killing of cattle, charge that the measure of damage is not nec- essarily the value of the animals when alive, but the difference Tn value be- tween the living animals and the dead carcasses, and the jury should deduct the amount which plaintiff might have realized from the dead carcasses by the exercise of reasonable diligence, was properly refused as -pstraet, where there was no evidence of the value of the carcasses of the cattle in their mangIed condition. and was also bad in failing to take into account the cost of transporting tne. carcasses from the place where the cattle were killed to market
 10. same-Ip an action against a railroad for the killing of cattle. a charge to find for defendant, if plain tiff has failed to reasonably satisfy the jury as to the ount of damage sus- tained. was erroneous, in that plain tiff, although he failed to establish the amount of damages, was entitled at least to to nominal non, ,e,l,,d damages on proof of
 (Ed. Note.-For cases in point, see Vol. IS, Cent. Dig. Da- lages, Sections 5S7. 5SS).
 ii. Railroads; injuries 10 cattle; ac- tions; instructions,-In an action against a railroad for killing cattle on the track, a charge to ma for defend ant if the engineer was keeping prop CT lookout for obsWuctIons, and tne animals came on the track suddenly and so close to the train that the in- jury could not be avoided, was properly refused, in that 1t failed to take into consideration the question of negli- 4s. with respect to speed and tlIuminative power of the locomotives headlight.
 12. Damages; assessment; instruc- tions.- In an action against a railroad for the killing of cattle, a charge that the value of the animals Killed was not to be determined by the purpose for which they were used, put by the req sonable market value or the animals. was properly refused as misleading. in view of evidence thap the cows were milk and butter producers and were used for that purpose alone.
 Ed. Note.-For cases in point. see Vol. 15. Cent. Dig. Damages. Section 269; Vol. Al, Cent Dig. Railroads. Sec ton 1621).
 13. Trial; instructions; improper phraseology.-The improper use of the word defendant" for '-pIaintIn'' in requested instruction need not be cor rected by the trial court, but the in- struction may be refused.
 IA. Railroads; injuries to cattle; &C., tions; instructions.-In an action against a railroad for killing cattle on the track, charge that the engineer was not bound to keep a lookout for animals beyond the light thrown from his engine; that Is, on The outsides of the track"-was properly refused as obscure and misleading,
 15. Same; duty to keep lookout Where a locomotive engineer Is negli- gent in keeping a lookout, but after wards, when it is too late to prevent collision, discovers an animal upon the track, the railroad is liable for the con- sequent injury to the animal.
 Appeal from City Court of Montgom- cry. Heard before Hon. A. D. Sayre. opinion by Dowdell, J. Affirmed. Haralson, simpson and Denson, JJ., con- cur.