The Montgomery advertiser., 1907-05-05
Head Notes of the Decisions
 of the ALabama Supreme Court


 having a legitimate bearing in the question of guilt or innocence.
 8. Same; testimony of defendant; explanatory of discriminating circurn- stances. The State having been all lowed to show that defenuant aid not eat breakfast at the home of prose- cutrix On the morning after the as- sault and that 1t was his habit to eat there, 1t was error not to permit the defendant to show that 1t was not unusual for him to be, away from breakfast there.
 4. Same; appeal; harmless error. --If error was committed in refusing to allow proof of prosecutrix age. 1t was harmless as her age was not question at issue.
 5. Witnesses; recalling for im- peachment; discretion Tt Is within the discretion of the trial court as to whether he will allow witness to be recalled for the purpose of being asked questions on which to lay predicate to impeach such witness, and not revisable.
 6. Criminal law; trial; remarks or counsel. Ut is not reversible error to permit the solicitor to comment upon the evils generally of the crime which the law he was seeking to enforce was intended to prevent.
 T. Same; instructions: offenses in- cluded in offense charged. The jury might under the evidence, have found the defendant guilty of an assault, or assault and battery, and hence a charge that if they believed the evil dence they would aeauit defendant, was error and properly refused.
 &. Same. misleading instructions. "A charge. asserting that if the jury believe the evidence they must &C., quit the defendant of assault to rav- ish. was misleading, as under the evidence they might have found .him guilty of the other offenses charged. The proper form is that they should find defendant not guilty of the high CT offense.
 9. Same; reasonable doubt. "A charge asserting that probability that some other person may have at tempted. to ravish prosecutrix Is suf- icient to create a reasonable doubt of defendants guilt, and therefore fox his acauittal. was properly refused, the nature of the offense being such that some other person and the de- fendant both might have been guilty thereof.
 Appeal from Monroe Circuit Court.
 Heard before Hon. J. T. Lackland.
 Reversed and remanded. Opinion by Simpson, J.
 Tyson, c. J., and Dowdell and An derson. JJ., concur.
 CREOLA LUMBER CO, vs. MILLS Action for Damages for Injury to Elm
 p1oye.-(Decided Dec. 20. 1908. 42
 So. Rep. 1019)
 Master and servant; injury to ser want; fellow servants; complaint-A complaint which alleges that plaintiff was a brakesman on a logging train and received injuries while operating said train, that he was working under the engineer, who was entrusted with the superintendence of plainti and of the operation of the train, and that while plaintiff was engaged in operating the trains, he was injured, and that the injuries were neer while in the exercise of such su- perintendence, shows that the negli- gence of the engineer while in the ex- ercise of his superintendence, and not as engineer, caused the injury. and is a good complaint under Subdivision 2 of Section 1749, Code 1896.
 2. Same; allegation of negligence; i; sufficiency-Where the complaint shows the duty of the employer to exercise gence causing the injury may be
 
 8. Same.-A complaint which alleges that the engineer in charge of the train was entrusted with the superintendence of the operation of the same, and of the person injured, and that the injuries were caused by reason of the negli- gence of the engineer, to whose direc- tions the brakesman, at the time of the injury, was bound to conform and did conform, while the engineer was Nf nrln tny 6an states a good cause of action under of Section 1749. Code 1896; the grayeamn of the charge be- ing that the injury resulted from the brakesman having conformed to a neg ltgent order given by co-employe to whose orders he Is bound to- conform
 4. Same.-A complaint based on 8, Section 1749, Code 1896, must aver the order given and con formed to and that the order was neg ligently given.
 5. Same.-A complaint alleging that the injury was caused by the negli- gence of the engineer employed to op- crate the train, while so engaged in the operation thereof.' sufficiently all leges that the engineer had "charge or control of the train" within Subdivis- ion of Section 1749, Code 1S96
 6. Same; contributory negligence; ; jury question.-Although the act of was unnecessary, 1t is not, under all circumstances, negligence, as a matter of law. for brakesmen to dismount from a moving train and at tempt to board the locomotive.
 [. Appeal; harmless error; ruling on demurrer filed plea of contributory negligence alleging that plaintiff negligently placed his foot on the railroad track immediate ly in front of a locomotive operated thereon, and thereby sustained the in fury complained of second plea of neligence averred that his foot was on the track of the road. A demurrer was sustained to the sec ond plea. Held, the defendant was en- titled under the first plea to prove the defense set up by the second plea, and the sustaining of the demurrer there to was harmless.
 8. Master and servant: injury to servant contributory negligence; suffl- clency of plea.-A plea of contributory negligence which alleges that plain tiff was guilty of contributory negli gence, in that he attempted to get upon the locomotive while the same was in motion. failing to aver the fact showing wherein his attempt was negligent, is 
 B. Same; proof of negligence; bur den.-An employe suing for personal injuries has the burden of showing that the negligence charged was the direct and immediate efficient cause of the injuries complained of.
 10 Same; evidence; suficiency.-