The Montgomery advertiser., 1906-10-18
SMITH V. BIRMINGHAM RY. L. ( P. -' CO., Damages for Personal 1njury.-(Deci-
 dsd May 1s. }sos. Al So. Hep.

D1mages for Personal In1ury.-(Dec1-
 sss sss, May l'' ''s. 4i s0' Rep
 1. Carriers; wrongful death of pas sengers; pleading.-In an action for the death of a person in attempting to board an electric car, the count not averring that tho deccuent was at- to board the train at . sta ton provided for passengers, or at place where 1t was usuai or customary to receive passengers, or that he was invited' or knowingly permitted to board the car by an authorized ser want of the company. or that he was in any manner accepted as passen- ger, IS demurrable as failing to show the relation of carrter and passenger.
 9. Appeal; harmless error; exclu- sion of. evidence.-In an action TOT death of a person attempting to board a street car at the intersection or the street car line with a railroad track the exclusion by the court of ques- tion whether a certain track Of the railroad company had peen built since decedent was killed was without in- jury, where the witness was after wards permitted to xestify that no track had been built since that time.
 3. Death; action: admissibility of Code 1886. Section 27. the recovery for death caused by wrongful act of such dam ages as a jury may assess, evidence Of the age of decedent Is inadmissible; the only damages recoverable being punitive damages.
 1, Trial; reception of evidence; ob- jections; motions-Where a question to a witness was not objected to. a motion to exclude the answer was properly denied.
 ~. N$ H. evancy of evidence.-ln an action for the death of a person attempting to board a street car. evTdence that the place where he attempted to board the car was one where people were pass Ing and repassing generally was not relevant to the issue whether 1t was one of the stopping places of the com pany's cars.
 G.. Evidence; opinions.-In an action for the death of a person attempting to board a street car, where g. witness that the car did not slow up as deceased attempted to get on 1t, his further statement that deceased was not thrown from the car by any jerking in its movement was not objectionable as a conclusion of the witness.
 Ss7. Appeal; review: discretion Of an action for the death of a person attempting to board street car, the refusal of the court to permit a witness for the plaintih. when introduced in rebutta1. to repeat his testimony as to where the car stop ned. will not be reviewed on appeal.
 8. Carriers; death of passenger; na- bility of carrier.-Where the death of a person attempting to board street car was caused by the jerking Of the car, the street car company is liable only if the attempt was made at reg ular stopping place, or a place where 1t was the habit of the company to take on or discharge passengers.
 g. Trial; instructions; sumciency- Where the only error urged in the giv- ing of charges Is that they are mis- and tend to confuse the Jury' they do not present ground for rever- sal.
 10. Carriers; injury to passenger; negligence.-Where person attempts to board a car In the night time, when the train Is running from four to six miles an hour, ana when he is incumbered by bundle, ne Is guilty of negligence.
 II. Same; instructions.-In an ac- tion for death of a person attempting to board a west bound street car at the of the car line with a rail road. an instruction that if. after the motor cur udu SioSSoo e'AO
 road track, the decedent was standing at a place near a pole between the west railroad track and the main line track. then the conductor did not have to look out for him when the car stopped, if 1t did not stop west of the transfer track. was not error.
 12. Same-In an action for death of a person attempting to board street car, an instruction passing the street car company's liability on the negli- nence of the conductor and motorman was not erroneous because 1t Ignored the presence of the street fagman and the train dispatcher on the car at the time of the accident. where the evil dence did not show tha, these persons had any duties with reference to the discharge of passengers or that they saw the decedent in time to save him.
 13. Same-In an action for the death of a person attempting to board a street car, where there was no evidence to show wanton or intentional miscon- duct of the street car employees. or to show that they knew decedent was Tn peril. an instruction that. If decedent attempted to board defendants car at a place where they did not usually or frequently stop to take on or let on passengers. the jury must find for the was not error.
 IA. New trial; grounds; newly dis- covered evidence.-Where newly dis-