The Montgomery advertiser., 1909-03-25
LOUISVILLE & NASHVILLE R. R. CO
 V. LOWE.

V. LOWE. Action for Damages for Injury to Elm pioye-(Decided December IT, 1908. 4S South. 99)
 1. Master and servant; injury to servant: liability act; proof-Where the cause of action is based on subdi- Ayision of Section ss10. Code 1907. the plaintiff has the burden of showing not only the existence of the alleged defect, and that 1t was the proximate. cause of the injury. but that the de- feet arose from or had not been dis covered or remedied owing to the neg ligence of the master. or some servant charged with the masters duty. g. Same; evidence.-The evidence In this case examined and stated and held insufi1cient to submit to the jury count of the complaint alleging that defect in the railroad track was due to the negligence of the defendant. 3. Same; instructions; applicability to issue.-Under a complaint contain ing two counts, the first being for defect in the railroad track. and the second for the negligence of defend- ants engineer in charge of the loco- motive which plaintiff was endeavoring to flag in failing to keep a proper look out a charge asserting that plaintin was entitled to recover upon proof of the engineers negligence occurring af- ter the OlSCOFcTy Oi pciiis notwithstanding plaintiffs contribu- tory negligence in going on the track, was erroneous, as subsequent negli- gence of the engineer was outside the issue.
 l. Same; evidence; conditions after injury-There being no evidence of a change in the meantime 1t was compe- tent to show the condition of the track where the injury occurred on the morn- f11l iOht nf fha l. dent 5. Negligence; actions: issue; proof. Where a complaint charges specific acts of negligence, the proof Is con- fined to the negligence specified; but if the negligence is charged in general terms, subsequent negligence may be proven.
 Appeal from Jefferson Circuit Court. Heard before Hon. A. o. Lane. Reversed and remanded. Opinion by Denson, J.
 Tyson, c. J.. Haralson and Denson. JJ., concur.
 HARDEMAN V WILLIAMS. | New Trial.-(Decided December IT, 19oS AS South. 10s.)
 New trial; grounds; inadeauacy of damage.-Where one count was for trespass by defendants agent upon realty and personality, and the other | was for trespass upon personally only, and the evidence showed that the de- | fendant's agent went as volunteer with the constable to levy on plain tiff's goods, stating at the time that | plaintiff was a bad woman and they might have to have fight .and inter- fered when plaintiff struck the consta l ble, verdict for plaintiff for l cent | damages was properly set aside for l inadequacy of damages.
 Appeal from Mobile Circuit Court. | Heard before Hon. Samuel B. Browne.
 Affirmed Opinion by Anderson, J. Tyson. c. J., Dowdell and Mcclellan, l JJ., concur.
 ROSE " LEWIS. | Breach of Contract-(Decided Decem-
 Der IT. 1908. 48 South. 1o5.)
 l. Sales; validity of contract as- sent of parties.-It Is no defense to an | action for a breach of contract that the contract Of sale contained an item
 which the defendant alleges that he did
 not know of or inadvertently overlook
 ed at the time 1t was executed, in the absence of fraud or tion
 on the part of the buyer, or inability l of the seller to read.
 2. Trial; order of proof.-The plain
 tin may offer evidence in rebuttal of
 defendants evidence in support of a defense, notwithstanding that In mak-
 ing out his case. plaintiffs evidence
 incidentally related to matters set up
 as such defense.
 g. Sales: performance of contract.- | Where the contract for sale of lumber | was silent as to who should charter the
 boat, but provided that the lumber should be shipped by boat. the contract
 was complied with If the boat was
 ready at the time stated without re- gard as to who should furnish it.
 {. Custom and usage; explanation of contract.-Where the contract of sale provided that the buyer must furnish