The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1908-08-16

under him.
10. Same; instructions.--An instruc-
ton asserting that the Jury were au-
thortzed to find for plaintiff IL the ma
chine Furnished by tsfendans was un-
saie ana out Of repair and by reason
thereof PLAINTIFF was injured, provide
ed defendant has not proved any OF his
pleas is not Objectionable as for a
failure to negative plaintiffs know1-
edge OF the fact that the machine was
unsafe where that fact was made a
defense by special plea.
II. Trial; instructions; request for.
The court being bound to give or re-
fuse written instructions as requested
VIII not be put In error for refusing
an Instruction that Is unintelligible.
u. Appeal; review; harmless error.
The giving or refusing of arguments
alive instructions is harmless error for
which the Judgment will not be revers-
ed.
Appeal from Morgan Circuit Court.
Heard before Hon. d. w. Speake.
Affirmed. Opinion by Tyson, c. J.
Dowdell, Anderson and Mcclellan.
u, concur.
ALABAMA CONSOLIDATED COAL
AND IRON CO.. v. HEALD.
Damages for Death OF Employe--(De-
FStN~tA ~ Ctt ddAS " AsVo1 " oSe@etA'
1. Pleading; amended pleading; new
cause OF action--Where. by the amend
ed COMPLAINT, the same substantial
facts are pleaded merely In a different
form from the original COMPLAINT, so
that a recovery on the amended COM
plant would operate as a bar to the
original complaint. no new cause OF ac-
tion is set up by the amendment to the
complaint.
2. same; departure: passing from
law to law--Where the original COM
plant alleged that intestate's death
was caused by defendants failure to
provide a reasonably safe place in
which to work. and was framed under
the common law or under a different
statute. and amended complaint alles-
ing that death resulted from going into
an unsafe place in obedience to orders
to which the employee was under duty
to conform, was not departure.
3. Limitation of action; amendments
relating back--In an action for death
resulting in negligence where the or
iginal complaint was filed within the
time, proper amendment made there
period of Limitation, relates back to the
Original complaint and Is not subject
to the plea OF the statute of limitation.
4. Same-The fact that the original
complaint was framed under the COM
mon law and the amended complaint
was based upon statute. II the amend
ed complaint is not departure from
the original complaint In its statement
of liability, does not prevent the
amendment from relating back to the
original complaint.
5. Appeal; review; harmless error;
action on pleadfng-Where the statute
of limitations does not apply rs q
defense to the action. 1t was harmless
error to sustain a demurrer to the plea
of the. statute OF Limitations on the
grounds OF informally.
6. Same: admissions of evidence; in
structions--If error was committed in
the admission of evidence where there
were several counts. the error !s not
cured by subsequent instruction that
the jury should consider no evidence
except that relating to Count J as IL
allowed the jury to apply the evidence
to the other count.
Z. Master and servant; injury to
servant; negligence: evidence of condi-
tion after inJury-In an action for
causing intestate's death by negligence
while working In an unsafe place In
defendants mine, evidence that imme-
diately after the injury the defendant
placed certain water pipes in his mine
was improper.
8. Same; evidences: admissib.ity--
The fact that another person was