The Montgomery advertiser., 1909-03-25
WESTERN STEEL CAR AND FOUND.

V ksN MI ll IE lu g3 1ma mD#ows WESTERN STEEL CAR AND FOUND
 RY co. V. CUNNINGHAM. Action for damages injury to em-
 ploye. Decided Dec. IT, 1908. 4s
 South. 109)
 1. Master and servant; injury to servant; superintendence: complaint. d complaint drawn under subd. of section 1749, Code 1896, Is not subject to demurrer because it alleges general ly that plaintiff was injured by the negligence of person in the service of defendant, who had superintendence entrusted to him, whilst in the exer- else of such superintendence. without stating what the superintendence was. 9. Same: negligence; res ipsa To- Quitur.--The import of the doctrine of res ipsa ioquitur in any given case Is that on the proof made plaintiff has a prima facie case, without direct proof of negligence. and if there is any specific evidence, positive or circum- stantial, bearing on the question of negligence. 1t need not be invoked. If 1t can be said to apply to an action be- tween master and servant.
 2 Same; evidence Where the evi- dence showed that plaintiff and other employees of defendant under the charge of a superintendent was engag- ed In moving lumber on car tracks connecting by turn-tabie, and that while 1t was on the turn-tabie, and aft CT the table had been moved, the lum- Der fell on plaintiff, and the evidence } further showed the dimensions of the lumber and of the car. the manner In which the lumber was loaded and the description of the turn-table, and tended also to show that the load was unusually large, considering the length of the lumber, such evidence furnished an influence from which the jury might find that the accident was caus- ed by the negligence of the superfn- tendent In not seeing that the car was properly and securely loaded, and did not leave the matter to conjecture wholly, although the witnesses testi- fled that they did not know what caused the lumber to fall off. that the car was standing perfectly still ana that there was no jar or shock.
 4 Same: contributory negligence In either case, it being necessary for the plaintiff to go under the car and latch the table when 1t stopped. and the lumber which injured him not hav- ing fallen until he was getting up af- ter latching the table. the fact that the employe went around with the table with car of lumber on 1t when he should have used stick, cannot prop erly be said to be the proximate cause of his injury. - 0. challenging jurors.--It was not rever- sible error to permit the plaintiff to challenged the jurors after he had beer accepted by both parties. where 1t was subsequently, learned, before the com pletement of the jury, that although the juror had been discharged by the defendant, he expected to go back to work for the defendant
 G. Same; assignment of error; mis- take. An assignment of error mistak Z, ing the question sought to be reviewed cannot be considered on appeal.
 '. Trial; instruction; form. A jury that they must find for the defen- dant as to the second count Of the complaint" is bad in form.
 s. Trial; instructions; assumin facts. "A charge that If the jury find plaintiffs negligence promimately con tributed to his injury they must ind for the defendant, though it was neg ligent, is bad in assuming that plain ! tiff was negligent.
 dence.--A charge instructing a finding for the defendant if the jury find that plaintiffs negligence contributed to his Injury, even though defendant wa. negligent. not only assumes the fact ol plainiif,s negligence but. casts doubt distrust or suspicion on the evidence as to defendants negligence.
 10. Same; asserting no legal propo- sition.--A charge asserting that ther'
  were permanent asserts no proposition of law and invades the province oi the jury.
 H. Same; exclusion of evidence Where the answer to a question would have been a repetition of testimony al ready given, it was not error to sus- tain objection thereto.
 Appeal from Anniston City Court.
 Heard before Hon. T. W. Coleman Jr.
 Affirmed Opinion by Denson, J.
 Tyson, c. J., Simpson and Anderson u, concur.
 BIRMINGHAM RAILWAY. LIGHT
 AND POWER co. V. CHASTAIN. Action by Parent for Damages to Minor
 So1, a Passenger-(CDecid Dec
 IT. 19os.-4S South. S5).
 l. Carriers; injuries to passengers complaint--A complaint which allegei that the servant of the defendant car rier. acting within the line of his duty caused plaintiffs minor son to fal from the car. and that such servan wantonly caused plaintiffs son to fal from the car, sufficiently ayers that thu servant was acting within the lint and scope of his authority
 2. Negligence pleading; injury.-Il actions for personal injury the com platnt must statesthe injuries with cer tainty and defniteness.
 8. Parent and child; actions for in fury; complaint Where the actior was by the parent for the loss of ser vice and society of his minor child the complaint sufficiently itemizes tn child's injury in the allegation that tn child was severely injured in his per son and made sick and sore thereby and plaintiff lost the services and so ciety of his child
 4. Same. injury to child; parent dama ges.-In an action by a paren for the loss of the services of his mino