The Montgomery advertiser., 1907-05-04

Reversed ana remanded. opinion by Mcclellan, J.
 Tyson. c. j.. Dowdell and Anderson JJ.. concur.
 BoYKIN V. THE STATE.
 Rape .--(Decided December 20, 1906.
 42 So. Rep, sss.)
 Criminal law; venue: proof; suffi- ciency.-Where the only evidence of venue was that prosecutrix went from a certain town to the house of defend ant, where the rape is alleged to have been committed, but there was no evil dence of the distance or direction by which she went. the proof was in- sufficient; for while the court Judicial- ly knows in what county such town is situated, it also knows that 1t is but few miles to another county line
 Appeal from Washington Circuit Court.
 Heard before Hon. Samuel B. Browne ] Reversed ard remanded. Opinion by
 Tyson. C. J. .and Dowdell and An derson. JJ.. concur.
 BIRMINGHAM RAILWAY, LIGHT AND
 POWER CO, " MOORE, ELLA. Action for Damages for Injury to Pas
 senger.-tDecided November 15,
 1906. 42 So. Rep, 1O24.)A
 l. Carriers; injury to passenger; complaint, Where the complaint al- leges that plaintiff was a passenger on defendants car when she received the injury complained of, the duty owing by defendant to her is shown and the averment that defendant failed to perform this duty is sufficient.
 2. Same; allegation of place of in- tury.-The allegation that plaintiff was injured while bn a car of defendant, CA ff. t,. otA. Birmingham, is sufficient as an allega- tion of place where the injury occurr- ed.
 8. Continuance; grounds: loss of pleadngs.--A motion to continue on the ground that the originai pleadings were lost, where the court ordered that the record of the original papers might be used upon the trial in all respects as the original paper, as provided by Sections 2644, 2645, Code of 1896. is properly refused.
 4. Appeal; review; showing error: record No error can be predicted on the action of the court in everything an objection to certified copies of the original answers to interrogatories, which were lost. certified copy of which was offered for filing, where there is nothing In the record to show that such certified copy was substi- tuted.
 5. Carriers: injury to passenger; negligence: presumption The negli- gence of defendant Is presumed when a passenger on it's street car was in- jured by the car colliding with another. and no evidence is offered explanatory of the collision.
 6. Damafies; amount; jury question: Where the evidence varies as to the extent of the injuries received. the amount of damages. becomes ques- tion for the jury.
 r. Same; evidence: competency - The complaint alleging that plaintiff was put to great expense for medical attention. 1t was proper to permit her to show what amount she had paid or was to pay her doctor.
 8. Evidence; competency of experts.
 Tt is not error to permit one shown to be an expert to answer hypothetical question, where the evidence tends to show the facts substantially as they were embraced in the hypothetical question asked.
 proper to permit plaintiff to show that any and all means known to medical skill were resorted to in the proper treatment of plaintiff to relieve her from danger,
 10. same.-where the evidence tend ed to show that plaintiff had appen- dicitis, superinduced by the injury re- ceived, 1t was competent to show the physical result that followed the dis ease.
 II. Evidence; medical books - Where the evidence tended to show that the injuries received superinduced appendicitis. parts of standard medi- cal books relating to the disease was competent evidence.
 12. Witnesses; cross examination.- Where the conductor on the car man ifested lack of recollection of the in- cidents of the action, he was properly asked on cross examination. "Is 1t not a fact that the Godkin baby was very badly injured?" and Did you know the names of anybody on the car?"
 13. Appeal; review; harmless error. It is not error to fail to sustain an objection to a question where the ques- tion is not answered.
 14. Carriers; injury to passengers; action; complaint An allegation of the negligence of the carrier. in an &C., tion for injury to passenger, is suffi- cient to embrace negligence of, the car rier's servant.
 IS. Headings; Issues on proof; un- necessary allegations. Where no neg Iigence is alleged with respect to the wreck, nor any of plaintiffs injuries attributed thereto. it Is net necessary to introduce evidence to support the allegation that the car was wrecked.
 16 Carriers; damage; instruction. - A charge asserting that the burden of proof is on the plaintiff to show that the injuries alleged were the proxi- mate cause of the appendicitis, is prop erly refused, where the complaint all legged other injuries, than the one claimed to have caused the appendi- citis.
 IT. Trial; instructions; reasonable doubt A charge asserting that plaint- fir cannot recover if. after fair con sideration of all the evidence. any ln- dividuaI juror is reasonably satisfied by any material part of the evidence that she ought not to recover. Is good and improperly refused. (Weakley, c. J., and penson, J., dissent.)
 lS Damages; excessive yerdiet.- Where the evidence tended to show that plaintiff received injuries, one or which superinduced appendicitis, on account of which plaintiff had to un- dergo an operation, resulting In great injury to her health, verdict Of S3,- 725 is not excessive.
 19. Trial; deliberation of jury; quo tient verdict In order to Vacate verdict on the ground that it was auotient verdict it must be shown by competent evidence that the jurors in advance agreed 'to be bound by par ticular manner adopted by them 10 ar rive at the verdict.
 20. New trial; affidavit of jurors to | impeach verdict; to sustain verdict The afidavit of juror is not admissi- | ble for the purpose of impeaching the | verdict, on a motion for new trial; but | affidavit of juror is competent evidence |