The Montgomery advertiser., 1908-04-06

cy etocknOlderB.--Whet
 or not the stock holders of a corrora
 lion. chartered before inc syate hs, reserved the right to amend the char ter. except by the consent of the stock hoioers, had consented to A change |, corporate power does not depend .lon,
 upon some affirmative act showing ar express intent. and where "a raIiroas
 chartered before the adoption of arti
 cie i4, Constitution 1875, has for nor,
 than thirty years avaiIed itself of tn,
 oenents of Sections TITO and 1f71. b, operaung railroad in this State. ant no stockholder has objected to tha ar.
 engagement during such time. altbou rf regular meetings of the stockhoIder, mad been held and the arrangement Known of. sufficient acceptance n, the stockholders is shown.
 l0 Same.-The provision of Section f1T0. Code 1898. is for the benefir ot the stockholders of domestic corposa.
 ton and who may waive compIia nee
 herewith and who alone may object to non compliance thlrewith and hence. the State may not in quo war ranto proceedings, object that the stockholders of the domestic company
 which made contract with the for. eign company did not give assent as required by said section.
 Appeal from Montgomery City Court
 Heard before Hon. A. D. sayre. s Reversed. rendered and remanded Opinion by Denson. J.
 Tyson. c. J., and Simpson and An derson. JJ.. concur.
 BIRMINGHAM RAILWAY. LIGHT S
 AND POWER CO, vs LEE.
 Action for Injury to Passenger.--(De-
 cided December 19. 1907. 45 South.
 2s2.)
 l. Pleading; demurrer; construction. "A demurrer asserting that the al- legged negligence of defendant Is not alleged to be the proximate result of injury to the plaintiff. Is untintelligible and wanting in merit.
 2. Carriefs; injury to passengers: negligence: wantonness; complaint A complaint that alleges that defen- dant's servants wantonly, and reckless ly or intentionally. injured plaintiff. while general. Is sufficient to charge wanton or intentional injury.
 3. Same; contributory negligence A plea setting up contributory negli- gence in that plaintiff boarded or neg ligently attempted. to board car is too general and Is demurrable for not setting forth the manner of the board ing or attempted boarding of the ear. Es
 f. Same: wantonness: evidence.-It Is admissible. on the issue of wanton- ness or wilfulness. for the motorman to testify that 1t was his duty to see that every one ready to get on the car got on before 1t started. where the tendencies of the evidence showed that plaintiff was in the act of boarding the car, that the motornan saw or could have, with diligence. seen him making such an attempt when the car vx,o .4n "A was notified of plaintiffs physical in- firmities and requested not to start the car until plaintiff was on board. i. {, Same; boarding moving car; con- tributory negligence.--Whether or not it is negligence for one to get on moving car, or to attempt to do so, is dependent upon the speed of the car and other consideration surrounding the party at the time, and is usually a question for the jury, and not of law for the court.
 6. Same; taking up passengers; neg Iigence of motorman.--It is the duty of the motorman not to start his car If a passenger Is getting on though having hold only of the handle of the car, and he has not done his full duty by ascertaining before he starts that no one is in the act of getting on the platform or steps.
 T. Same; instructions.-The failure of the crew of the street car to know that one is about to board the car may be negligence as the crew. or some of them, are chargeable with the duty of knowing before starting that no one Is in the act of boarding or attempt Ing to board the car, and hence, a charge asserting that if plaintiff at- tempted to board the car after it had started and without the knowledge of the crew he could not recover, Is properly refused.
 Appeal from Birmingham City Court.
 Heard before Hon. c. c. Nesmith.
 Affirmed. Opinion by Haralson. J. Tyson, C.. J., and Anderson and Me- clellan, JJ., concur.