The Montgomery advertiser., 1908-02-21

I ject to demurrer on that grounds.
 3. Damages; special damages; plead
 ing.-Uniess special damages are | averred they cannot be recovered. | {. slander: repetitions; rnaIice.--As I tending to show malice. the repetition of islander Is competent evidence whether made before 1or after suit brought.
 s. Evidence ;-.ntent.--one may not ! testify as to his secret intent or un- communicated motive in doing or say | ing certain things.
 Appeal from Morgan Circuit Court. Heard before Hon. D. W. Speake. Reversed and remarked. Opinion by Dowdell. U.
 Tyson. c. j.. cimpson and Denson. JJ., concur.
 | SOUTHERN RAILWAY COMPANY V. wEATHERLOW. Action for Damages for Personal In- Jury.-( Decided Nov. s27. is07.--45 So. Rep. 10f9.)
 I. Negligence: action; pleading; will l full or intentional fnjury.--A com | plaint alleging that defendant'ss ser wants wantonly and recklessly or in- tentionaliy inflicted the injury com 1 piafned of. Is not subject to demurrer. either for failure to part.eularixe in what the wantonness consisted. or in alleging wantonness or wilfuilness in l the alternative.
 2. Same: simply negligence. kAl- thought count alleged that defend- ants servants wantonly and recklessly propelled it's engine and tender on It's track over a certain public crossing and streets, etc. but omitted to charge knowledge on the part of such ser, wants of the conditions and the sur soundings existing at that time and place, and a consciousness on their part that their conduct would probably re- suit in injury, such counts charge sim- pie negligence.
 3. Same; defense.--A count in a com- plaint which alleges simple negligence only. although containing the words willfui and wanton Injury, is open to the defense of contributory negligence. 1. Evidence. conclusion.-T ques- ton as to whether or not many or few people use a certain railroad crossing is not objectionable as calling for a conclusion; it Is rather . statement of collective fact.
 s. Same; ordinances of city: identifi- cation.--Under Section 1922, Code 1896. code of municipal ordinances was suf- ficently identified to authorize sts ad- mission in evidence where it purported on It's face to be the code of ordinances and by-laws of tine municipal corpora tion.
 6. Same; experts; evidence; subjects. --It is not permissible to inquire of a medical expert concerning the extent and character of the injuries e person would have received had he been struck by an engine going from fifteen to twenty miles per hour, as the subject was not one calling for expert testi- mony.
 '. Appear assignments of error: waiver.--Errors assigned but not inc sisted on in argument or brief will be deemed to be waived.
 Appeal from Colbert Circuit Court.
 Heard before Hon. Jos. H. Nathan.
 Reversed and. remanded. opinion by Dowdell, ].
 Tyson. c. T.. simpson and benson. JJ.. concur.
 MOBILE, JACKSON. AND. KANSAS
 CITY R. R. co. V. SMITH. Action for Damages for Personal Tn-
 jury (Decided Nov. 12. 1s07.--45
 So. Rep. 57.l-(Rehearing denied
 Dec, I9. 1907).
 1. Railroads: willful or wanton sin- 5ury.-The intentional doing of an act with reckless indifference to consS- auences, under circumstances making the doer conscious that his act will likely result in injury, Is wantonness, and the court properly submitted to the jury to determine whether the act of those operating the train was will- full or wanton, where the evidence showed that the railroads official, and the conductor in charge of the train which caused the injury. knew that the plaintiff and her husband were liv- ing fin a box car on a siding, although the conductor did not know whether she was in the car at the time of the injury, and car from the train was violently kicked into the siding. strilk- ing the cars in which plaintiff was and throwing her down and injuring her. 2 2. Appeal; harmless error; error fa- vorable to party complaining.-A charge authorizing the awarding of punitive damages, If the jury are satis- fled that the Injury was wantonfy or wflfully inflicted. while exacting too high degree of proof from plaintiff IS harmless to defendant. }e
 8. San1e.--An instruction limiting the amount of plaintinffb recovery to $10,O00 is harmless to defendant where the complaint claim $5O,000.
 Appeal from Mobile Circuit Court.
 Heard before Hon. Samuel B. Browne.
 Affirmed. Opinion by Tyson, C. J.
 Simpson, Anderson and Denson. JJ.. concur.