The Montgomery advertiser., 1906-04-12

Decided June 18th. 1905. GAO So. Rep.
 SS.)
 1. Partnership: creation of relation. To constitute partnership there must be valid agreement to enter into 1t. and the agreement must be execut- ed.
 2. Same; essentials of contract-An agreement between parties to pur- chase property on Joint account must be definite on sufficient consideration. and mutual.
 Appeal from Montgomery City Court. Heard before Hon. A.. D. Sayre. Rehearing denied Jan. 9th, 1906. Affirmed. Opinion by Simpson. J.
 Mcclellan, c. J., Tyson and Anderson. JJ., concur.
 MONTGOMERY ST. RY. CO. V. SMITH Action for damages for Personal In-
 juries Decided Dec. 21. 1905) (39
 So. Rep. 757)
 1. Pleading; Complaint: Disjunctive Averments.-A complaint containing several counts, all of which allege the same negligent act or omission, but some of which attribute the negligent act or omission to one cause, and the others to another cause, do not state two causes of action, and is not demur- rable as stating disjunctively two causes of action, and is not demurrable
  action.
 2. Master and Servant: Independent Contractor; Actions; Evidence.-Where the suit was for injuries sustained by falling into an excavation made on de- fendants track, and the sdefenses set up were that the work was done by an independent contractor and under the supervision of the city engineer, it Is permissible for plaintiff to show that of aafa mt company applied to the city engineer for a permit to do the work of exca- vating.
 3. Street Railroads: Defect in Streets Negligence; City Ordinance; Effect The fact that the city ordinances re- quire street railroad to keep that | part of the street over which It's tracks pass, between said rails and for two l feet on either side, in good repair. | does not render the street railroad less liable for negligence In leaving exca- vations made by 1t in such part of a street without the usual safeguards, but, in fact, renders 1t all the more lia- ble for such negligence. 4. Street Railroads; Repair; City Ordinances; Construction of.-A city ordinance requiring a street railroad to keep the streets in good repair. be- tween the rails and two feet on either
 
 within the city limits, includes tracks to be laid, as we'll as those already laid.
 5. Same; Taking Possession of Streets; Duty to public.-Irrespective of ordinances. where a street railroad takes possession of parts of streets for | the construction and operation of its railroad. it assumes the duty to the pub lie to keep such parts of such streets l iad hv nil | in safe condition.
 6. Master and Servant; Independ- ent Contractor; Negligence; Liability | of Employer.-The principal is liabble | for the acts of an independent contrac- | tor employed by him. where the work | to be done is intrinsically dangerous. however, skillfully performed, or where the employer owes certain duties to | the public or to third persons :. Trial; Instruction; Province of the Court.-It Is proper to refuse an instruction that there Is no evidence of any permanent injury suffered on account of the fall testified about, as it Is not the province of the court to de- clare to the jury that there was no evidence of any particular fact. 8. Same; Instructions; Confusing or Misleading.--It is not error to refuse written instructions that are confus- ing or misleading in their tendencies, such as charges 1 and 16 and 21 re quested by defendant.
 S. Same; Abstract Charges.-Charges asked based upon assumptions of fact of which there Is no evidence, are ab- stract and properly refused. as being so. such as charges 19 and 22 requested by defendant.
 To- Street Railroads; Obstruction in Street; Liability.-The railroad compa- nv was not relieved from the duty rest ing upon 1t to keep such part of the street in a safe condition as 1t occupied with it's track. by the fact that the city engineer was overlooking the work being done by it on such streets.
 II. Damages; Expenses Incurred; i; Husband and Wife; Presumptions-m the absence of evidence as to whom credit was given, the presumption Is that 1t was given to the husband, and in an action by a married woman for injuries received, medical attention not paid for by her, and not shown to be charged to her, was not d proper ele- ment of damage.
 l2. Municipal Corporations; Obstruc- ton in Streets; Duty of Traveller While there is no duty resting on a traveller to ascertain whether or not the way is clear and he may indulge the presumption that it is clear, yet if he has knowledge of an obstruction, or has reason to believe that such exists, he must. on approaching such place. look for same. and use ordinary care to avoid injury from same,
 Appeal from Montgomery City Sourt.
 Heard before Hon. A. D. Sayre.
 Reversed and Rcmanded. opinion by Simpson. J,
 Haralson. Tyson and Anderson. JJ., concur.