The Montgomery advertiser., 1909-01-14
ITALIA RAILWAY co. V BuLLARD.

l tempting to Board Cars--tDeciuee l Nov. IS, fsee.--tf South. 57s)
 1. Trial: instructions; matters out.
 side the issue:--Under q complaint al.
 lsging that the car was standing still
 when plaintiff attempted to board 1t
 and charging negligence in the start I fng of the car with sudden jerk while
 pIaintiff was attempting to board. te
 which the only plea was the general is-
 sue. instructions attempting to submit
 to the jury the question of plaintiffs
 negligence if the car was moving slow
 would be to submit matters outside
 the issue and are erroneous. 2. Same; error cured by other in- structions.---Where Instructions are given submitting questions outside the
 issues, such as, whether plaintiff was negligent If he attempted to board the
 car while 1t was moving slowly. are
 not cured by the siving of other in stfuctions asserting that the burden was on the plaintiff to reasonably sat-
 isfy the jury that the car was standing still when he attempted to board 1t; this court not being able to say which charge controlled the action of the jury.
 g. Same: irresponsivs answers: who may object The right to object that the answer Is not responsive to the question resides only In the party ask ing the question
 1. Negligence: defnition.--The defin- ing of acttonabIe negligence as the do- ing or omission to do an act which re- suita in Injury to another. but with out itent to do wrong on the part of the actor. fs Inaccurate and too broad as . definition of simple negiigence: assuming that a duty existed, and where only ordinary care is required. xxa uff hn sAaf3n06 n be failure to do what an ordinarily prudent person would have done under the same circumstances, or the doing Of something which an ordinarily pru- dent person would not have done under similar circumstances.
 s. Carriers; injury to passenger; neg ligence; instructions.--A charge as. board ear when 1t was dangerous to do so because of ks~rapid speed. and because of this plaintiH fell and was injured. then, if the injury was so caused by defendant's negligence. yer diet should be for the plaintiff. is er- roneous for two reasons; first, under tho facts hypothetical the negligence of the plaintiff and not of defendant, caused the injury; second. the facts hypothesized are not within the is- sued made by the pleading.
 6. Same; instructions; stating is- sues.a-Where the issues are made by the pieadings were that plaintiff att tafnpeted to board the ear while stand ing stiil and was injured by the sud- den starting of of the car. to which the plea of the general issue was inter- posed. q charge asserting that plain tfff does not sue for damages for in- 3uries received while attempting to board . moving car, and if 1t was moving when he attempted to board it there could be no recovery in this ae- ton, properly states the issues and should have been given.
 [. Evidence; cOnclusion.--A state- ment that plaintiff looked like, he fell powerful hard and got hurt, is the statement of fact In the judgment of . witness. from what he saw. and is not a conclusion.
 Appeal from Etowah Circuit Court.
 Heard before Hon. John W. Inzer.
 Reversed and remanded. Opinion by Dowdeli. J.
 Tyson, c. J., Anderson and Meclel- land, JJs concur.
 @4
 JACKSON v. MoBLEY. CLERK. to Compel Clerk to Enter
 Witnesses Summoned for the State
 on His Subpoena Docket, and to
 Furnish Defendant Copy of Same.
 lDecided Nov. IT. ls0e.--47 South.
 690).
 l. Mandamus; clerk of court; prior proceedings-Mandam addressed to the court of which the respondent Is the clerk, to require an observance of duty by the clerk as to a cause pending ofncially in the clerks GUS tody, meets fully the rule that 1t Is necessary to first invoke the power of the court to which the clerk iB attach cd before resort may be properly had to another tribunal; since the action taken or to be taken by the court be- Ing the same in legal effect whether the proceedings are begun by man. iasnus or by petition praying for an order requiring such an observance.
 2. Same; ministerial duty; remedy The duties required of q circuit clerk under Subdivisions and 14 Of Sec Hon o34, and by Section 2646. Code 1898, are ministerial. void of discre- ton in their exercise. and the per iormance of them may be compelled oy nRndamus.
 8. Criminal law: proceedings; se- ,recy.--As a general rule, all criminal should be open and public after the arrest is made. {. Words and phases; supboena ad estilicandum. .---Inhe erent power pos- 'essed by courts having the power to | lear and determine controversy to | all for proofs of che facts involved, | md to summon and compel the at- | endance of witnesses before them is | expressed by the phrase. subpoena | d testificandum; and whoever may | 10 clothed with the right to issue 1t, | he process for such purpose, is essen- ially judicial.
 6. Courts; clerks duties; perform nee.--The clerk being required to nake the entries and perform the du- ies imposed by Subdivision 6 of Sec Ion 934. Code 1896, within a reason bIe time after the issuance and re- urn of the subpoena, the duty is not erformed by entries made after final isposition of the cause.
 6. Courts: witnesses; subpoena dock t.-The subpoena docket required to Q kept by the clerk Ia not a part of be fnal record Of the cause, but a lemorial of the steps taken to pro- ure testimony, more permanent than le writs themselves.
 2. Same; trial; dockets.--Unless re- Eored thereto by appropriate action. cause which has been determined and 1e judgment therein satisfied, has 0 place on the trial docket of the ,urt. such being intended to contain nly live causes in court of determina- on, or in course of enforcement of ghts therein adjudlcated. S. Same; fiIe.-The file in a cause all papers belonging to a luse, such as original subpoenas Is. led for witnesses, etc. 9. Records: copies.--Under the pro- Isions of Subdivision IA of Section 934, le clerk must deliver. upon the ap- ieation of Q defendant in a criminal . lse accompanied by the tender of ] roper fees, a correct transcript of ibpoenas issued by the State and ]