The Montgomery advertiser., 1906-04-11

iOhHdhS "ith hCGii6 tifodSh tuC
 acts and omissions of its superintend-
 ent. defendant, by going to trial with
 out the slightest effort on it's part to
 postpone or make a showing for such
 superintendent. knowing that he was
 not present, was not entitled to a new
 trial on the ground of the absence of
 such superintendent as a witness.
 12 Appeal; Review of Verdict;
 Amount of Recovery. Where damages
 were not excessive if plaintiffs evil
 dence was true. there can be no reversal
 on the ground that the verdict was ex- cessive.
 Appeal from Birmingham City Court. Heard before Hon. Charles A. Senn. Affirmed. Opinion by Anderson, J. Mcclellan. C. J., Tyson and Simpson,
 JJ., concur.
 ALA. GREAT SOUTHERN RY. co. V. GUEST, AS ADMR. Action for damages for death of in- testate. Decided December 21. 1905. (39 So. Rep. 654.) 1. Trial; instructions; misleading charges.-It is not reversible error to give charges misleading in tendency. as 1t Is always opeh to the other party to request instructions explanatory thereof.
 2. Same.--In an action for the death of one run over by a railroad train.
 where one count therein does not al- lege a high rate of speed of the train at the time deceased was struck, ex- cept inferentially. and there is con- l iict in the evidence as to the rate of speed. it is proper to refuse to instruct | that verdict cannot be rendered on such count for plaintiff unless the jury | believe the cars were being run at
 high and dangerous rate of speed at | time deceased was struck, B. Same; argumentative instruction; formal defects.-Charges which are l argumentative are properly refused; {; | so also are charges which are formally defective.
 A. Negligence; wanton negligence: ] definition.-An instruction that to con 1 stitute wanton negligence, an act done or omitted. must have been done or omitted with the present knowledge l that Injury would probably result. is 1 correct.
 | 5. Evidence: rebuttal.-The defen- dant introduced showing of a wit ness which rendered an issue of sui
 eide, and the plaintiff had a right to | offer evidence in rebuttal of the Issue so rendered.
 | 6. Railroads; injury to persons on
 track; evidence.-Where the charge was | that plaintiffs intestate was wantonly | killed at railroad crossing by defen- | dant's train of cars. 1t was competent | for the plaintiff to show the condi- | tons as to the frequency and number
 of persons passing along the defen- dant's track at the time and place in question.
 l T. Railroads; persons on track; tres pass; duty not to kill.-The duty nos | to wantonly, willfully or intentionally
 kill or injure a trcspasser on a railroad track. in the operation of the engines or cars thereon. is just as imperative as not to so injure one rightfuly on l such track; in such cases the law makes no possible distinction. | Appeal from DeKalb Circuit Court. Heard before Hon. J. A. Bilbro. Reversed and remanded. Opinion by l Dowdell. J.
 l Harold, Simpson and Anderson, JJ.. | concur.
 | VANDIVER vs. I'll ESTATE. 1 (Decided June l5, 1905.)-(40 So Rer. | SSD
 | 1. Vagrancy; Indictment; Suhicient. An indictment alleging that defen- | dant being able to work and having | no property, wandered about in idle ness. sufficiently charges vagrancy, | n Q