The Montgomery advertiser., 1907-05-04

tyson, c. J., rand Haralson ana simpson. JJ.. concur.
 ALABAMA STEEL AND WIRE CON-
 PANY V. GRIFFIN. ADMR.
 Action for Damages for Death of Em-
 p1oye--(Decided Feb. 5, 1907--42 So.
 Rep. 1034.)
 l. Appeal; rulings on pleadings; harmless error-Counsel for plaintiff having stated that plaintiff did not claim a recovery on any of the counts of the complaint. except certain speci- fled ones, and the court in its charge to the jury having limited the right of re- covery to the specified counts. the com plaint was in effect amended by strik-- ing out the abandoned counts and rul- ings on demurrer to those counts, if err TOT, was harmless.
 s ?. Master and servant: statutory regulations; railroad employes--Subdi- vision 5 of Section 1749. Code 1s96. has application only to one employed in and about railroad. and one seeking re- covery hereunder must allege and prove that at the time of the injury he was employed in and about a railway. and it is/not sufficient that he was en- ployed at the plant of an employer who also owned a railroad operated in fur therance of the business of the plant.
 3. Same; injury to servant; complaint: sufficiency--A complaint which alleges that the employer owned and operated a plant and railroad and that plaintiffs intestate was killed by cars striking other cars while loading them in conse- quence of the negligence of an employe on the railroad states cause of action under subdivision 5. Section 1749. Code 1896. @ 5A
 4. Appeal; ruling on demurrer: re- view-On appeal. this court will not ,ofI fI1,. &t.z ,,ao 4 -lnt, ,,A on ground not presented by the de- murrers thereto.
 5. Master and servant; injury to ser want; complaint sufficiency--A com plaint alleging that the employer was operating a plant and that while the 'plaintiff's intestate was engaged in and about the business of the employer at or near the plant. he was struck by cars operated on railroad owned by the employer. does not state a cause of act ion under subdivision 5 of Section 1749, Code 1896: it being wanting in aver ment that intestate was employed in or about the railway. or that he was dis charging any duty in connection there
 6. Name: middle initiaI-Letters of administration designating the intestate a \"C. L. O." are admissible in evil dence. although intestate's correct name was "C. C." the insertion of the middle initial being surpiusage.
 '. Master and servant; injury to ser- want; negligence; evfdence-The counts in which the case was tried not alleg- ing negligence. In the failure to have headlight on the engine. evidence of a want of hedlight was immaterial.
 8. Death; evidence; damages-It was permissible to show that plaintiffs in- testate and another walked from an other State to the place of employment, begged for food and slept in barns, as shedding light upon whetf 1T or not in- testate was a sober and industrious man, or an inebriate. a tramp or lazy man, to go to the jury in determining intestate's earning capacity, and as shedding light on the question of dam ages.
 9. Measure of damages: evidence; ad- missibility--It may be shown in an act ion for the negligent death of intestate that he was skilled in trades other than the one in which he was employed, and what he could earn at such trade. as shedding light on his probable earning abandoned, the same. or had become in- capacitated from following 1t before his death.
 v 10. Appeal; assignments of error: suf- ficiency-The portion of the judges charge containing several hundred words and many sentences is set out in the bill of exceptions. The assignment of error does not point out particularly the defective portions. anI counsel do not do so in brief. Held. the exception is unavailing unless all the portion set out is bad.
 II. Trial; instructions: applicabil- ity to pleadine-An instruction predi- cated upon a defect which was not al- legsd in either count of t:.e complaint kka f0 the pfnnQrlv Az fused. 4,s '.-,ssss
 I2 Same misleading instructions--A charge asserting that if the jury believ- ed that intestate's parents did not know where he was getting the money they testified he sent to them. and if the jury did not believe that intestate was earn ing money in computing the measure of damages. they could not estimate the same as basis. was misleading and properly refused. ssf
 l3 Death: measure of damages Where the parents of the intestate were entitled to the damages awarded for his death their life expectancy does not enter into the estimate of the damag ges.
 IA Same: jurisdiction-Althou in- testate was a nonresident and had no propertv In this State at the time of his death, his administrator may recov- CT for the negligent death in the courts of this State.
 K Appeal: instructions: review-In- structions relating to counts open to demurrer and so held on this appeal. will not be considered.
 ia Master and servant; injury to ser want: action: instruction-An instruct ion asserting that if some one unknown to the other employees had thrown the s1,,trh and that they were not aware that inc switch had been thrown, yer