The Montgomery advertiser., 1907-03-18
MOSS '. MosELY.

so Rep, 10l2 D
 1. Master and servant; duty of ser want: complaint. The complaint averr-
 ed explicitly the relation of master
 and servant, that the intestate's death
 was caused by his conforming to an order negligently given by his supe- rior to do certain work in cleaning up
 about certain machinery. Held. com- plaint is not defective for a failure to allege that plaintiff was in the dis. charge of his duties at the time he was
 killed. "A
 ?. Same: obvious Where the complaint alleged that the intes- tate. who, was Inexperienced, was killed while performing a dangerous service required by his superior ser want to whose orders he was bound to conform, it is not defective for faiI- ure to allege that the danger was not obvious. or that the itnestatei was not fully warned or cautioned as to its existence. g., Same; discharge of duties "A complaint is not demurrable for fail-, ure to sho wthat the plaintiffs iutes- tate was in the discharge of his du- ties when killed, nor for indefinite where 1t alleges that defendant's intes- tate was engaged in operating certain brick work. in which plaintiff's intes-i tate, a boy under 14 years of age. and inexperienced, was employed at the time he was killed: that his death was proximately caused by the negligence of a person in defendants service, to whom superintendence had been in- trusted, and that, knowing that the place was necessarily dangerous, he directed intestate to clean up about certain machinery. so that and as the proximate result. piaintiff's intestatei was killed.
 plaadinr. dan,,rrar. aennA "A demurrer to a replication because 1t did not appear that piaintiff's claim was presented as required by law with in twelve months after grant of letters on defendants estate, raises no other question than the one was the claim presented within the time required. 5. Executors and administrators; claims presentation against estate - Where defendant dies pending the suit and a revivor is had against the personal representative. plaintiff Is not bound to present the claim on which the suit is based to the administrator for allowance or file the same in the Probate Court.
 6. Master and servant; death of servant; pleading; issue and proof Where the complaint alleged that the superintendent knew that the plaint- frs intestate was an inexperienced boy in and about the business. the
  legation, as 1t was a material aver mentaand merely incidental, where 4he action was for the death of the ser- want caused by the negligence of the superintendent
 Pleading: Issue and proof; ina- material issue Where a plea of de- fendant presented an immaterial issue, on which the plaintiff took issue, the burden was not on the plaintiff to deny the allegations of the plea, and where no evidence was offered either to eup- rort or controvert the plea, tho de- fendant was not entitled to the affirm ative charge.
 8. Master and servant; death of ser- want; evidence-As to whether the in- testate was inexperienced with refer ence to the particular work assigned him, evidence that intestate was a boy between 1S and 14 years of age, his size, the character of work he was
 directed to do, the place where the work was. the fact that he had work ed at defendants brick yard only a short time, and that the work to which
 he was put at the time of his Injury. was not his regular job, but was dan- gerous work, was admissible.
 9. Same; assumed risk.-A minor I employe assumes only such risks of
 the business in which he is engaged as person of his apparent age, intelli-,
 gence and capacity would observe and
 appreciate by the exercise of ordinary
 care
 II. same.-where the complaint
 averred that the work was necessarily
 dangerous, it was error to refuse charge that unless the jury believe that
 the work, when performed in the usual
 way, was necessarily dangerous, plaint-
 if could not recover.
 12. Trial; instructions; refusal "A
 charge asserting that the evidence. showed that the intestate was bright
 boy for his age and had more mental capacity than the average boy of his age asserts no proposition of law, and
 is a charge on the effect of evidence and properly refused.
 IS. Same.--A charge asked merely
 for the purpose of answering an argu-
 ment of opposing counsel Is properly
 refused.
 IA Same; elimination of evidence -
 charge asserting that if it was not a
 part of intestate's duty to clean up around the brick machine. which he
 was doing when killed, plaintiff could not recover, is properly refused, where
 there was evidence tending to show
 that defendants superintendent. act
 ing within the scope of his authority,
 ordered intestate to do the work he
 was doing at the time he was killed.
 15. Master and servant; death of servant; action; instruction.--A charge
 asserting that unless intestate was
 without experience in the work he was
 set to do when killed. plaintiff could
 not recover, should have been given,
 the complaint charging that intestate
 was inexperienced in this work.
 16. Trial; argumentative instruc-
 tion.-An instruction asserting that
 the law is that one who has by his
 negligence proximately contributed to
 his Injury. cannot recover damages against another who has negligently caused his death, and that the rule Is applicable though the person injured is under IA years of age, if he pos sesses sufficient mental capacity. is an argument, and its refusal proper. IT. Master and servant; death of servant; action; instruction.-The plea alleged that there was a safe way to
 do the work intestate was set to do. and tnai t7.f'r
 negligent failure to resort to that way
 The charge asserted that if intestate
 had sufficient mental capacity to know
 and knew or, by exercise of reasonable diligence, would have known that the.
 feast dangerous way" to clean up the,
 dirt was to use a shovel for that pur-
 pose and if his failure to use shovel proximately contributed to his deaths plaintiff could not recover Held, the charge was not covered by the plea, in
 that it used the expression. least
 dangerous way" and 1t was properly
 refused.
 IS. Same; contributory negligence; n. ..N-. -r4o Hnga