The Montgomery advertiser., 1906-05-14
Head-Notes ef the Decisions
 of Alabama Supreme Court

1 ticular position he was in at the time | he was killed, will not defeat q recoy- cry where the injury resulted. not from | the ordinary danger, but from the ueg- lfgence of the superintendent of the defendant.
 6. Death; damages; earning capaci- ty.-The wages received by deceased | at the time of his death. are a proper element of damages in an action for damages for death of intestate. '. Evidence; conclusion of witness. Tt was not an error to allow wit ! ness to state what appreciable time elapsed from the giving of the order | to slacken the chain until deceased was struck, and whether deceased had time to get away, 1t being a statement of collective facts, easier for the wit ness who saw the occurrence to state than for the jury to arrive at by a mathematical calculation from A state ment of all the facts and circun- stances.
 s. Master and servant; injury to servant; contributory negligence; evil dence-It was error to exclude evil dence that there was safe way of doing the work plaintiffs intestate was engaged in at the time of the injury. and that had he followed such way.
 would have escaped injury. under a
 plea of contributory negligence setting up such facts.
 Ice g, Death; Measure of Damages.-
 The measure of damages for death of an employe caused by negligence of that which gives such sum as being put to interest, will each year, by talk ing a part of the principal and adding It to the interest yield the amount of deceased's yearly contribution to his family, less his personal expenses. and
 so that tn ewhole remaining principal
 at the end of deceased's expectancy of | life, added to the interest on this bal
 ance for that year, will equal the amount of his yearly contribution to
 his family. less his personal expenses
 "a table rate of per cent interest Is given in the opinion.) 10 Death; Damages.-ln case where deceased had no dependents, the measure of damages. Is such sum as at legal interest would produce at the expiration of the expectancy of de- ceased, an amount equal to his prob able net earnings, during that period, based upon the amount of his net earn lings before as shown reasonably from the evidence.
 Ii. Death; Damages: Excessive Yer ldict-Under either of the foregoing rules as to measure of damages, the verdict in this case Is held to be exces- sive, it being shown that deceased's Iexpectancy was forty years. that he
 
 dollars per month, and saved no mon ey.
 l2. Administrators: Assets authoriz- ing apointment-A claim for damages for death resulting from the negligence of a third person is an asset sufficient to authorize the appointment of an administrator.
 Is. Same: Appointment; Collateral Attack.-Whether the apolntment of an Is invalid or not. can not be collaterauy inquired into.
 IA Witnesses; Evidence of 1nconsis- tent Statements.-Where one heard one of the other of two witnesses make a statement different from his testimony, and cannot say which one, 1t is improp- CT to allow testimony concerning such statement for the pur- pose of impeachment.
 Is. Trial; Instructions; Construed as a Whole-Where objection is taken to a part of the charge of the court, such part must be construed in connection with the whole charge. and no error appearing when so construed the case will not be reversed.
 16. Same: Withdrawal of Instruc- ons.-Instructions enormously given If withdrawal from the jury before they retire. are harmless and will not work a reversal
 l7. Negligence; Instructions: Com tributory Negligence.--A charge which instructs the jury that If deceased by pursuing a different course mignt have escaped injury, this does not make