The Montgomery advertiser., 1909-03-14

2. Same: negligence of engineer, wantonness If the engineer saw thS child on the track ahead of the ap- preaching train and with reckless in. difference to consequences, neglected to use preventive measures to avoid the injury after discovering the peril, if discovered in time for preventive effort he was guilty of wanton wrong.
 8. Evidence; expert; -competency.- Where a witness testified that there were two long blasts of the whistle, that she had lived near to a railroad all her life. and knew the blows of an engine such witness was competent to testify as to the meaning of such signal.
 - 9. Same: opinion; competency Where a witness testified that for two or three years, some twenty years pre- vious to the trial, he had been an en- gineer. and since that time had obs served the operation of trains. and for the past three or four years had lived near the defendants road and had mo- tised the operation of trains on that road equipped with the airbrake. such witness was comp potent to give his opin- lon as to within what distance a train drawing seven or eight cars equipped with airbrakes and running al speed of about thirty-fiv miles an hour. could be stopped. on a straight track with slight upgrade.
 Appeal from Jackson Circuit Court.
 Heard before Hon. W. w. Haralson.
 Reversed and remanded. Opinion by Dowdell. J.
 / Simpson. Denson and Mcclellan, JJ., concur.
 SCARBROUGH vs. CITY NATIONAL
 BANK.
 Assumpsit-( (Decided December IT,
 190S.-4S South. 62.)
 1. Bills and notes; notice of dishon- or; notice to agent-An allegation in a complaint that notice was given to one N.. who was present at the de- fendant's place of business. and in thes service and employment of defendant, is a sufficient allegation of the agency of N. and of notice to the endorser.
 ?. Same; actions on; parties; joinder; maker and endorser-The maker and endorser of promissory note may be sued at the same time, but in separate actions, and cannot be sued jointly. in the absence of a statute so providing.
 3. Actions; amendments; striking i'm. proper parties-Where the maker and endorser of promissory mote were improperly joined as defendants, the complaint was properly amended by striking out the maker as a party de- Administration 6367, Code 1907.
 4. Bills and notes; notice of dishon'
 
 form of notice of dishonor of a nego- tiable note Is necessary; 1t being suf- fiient that the party liable Is informed of its dish honor and notified that he would be held liable: and verbal mo- tice of dishonor to an endorser Is suf' ficient even though given to his agent
 5. Same; liability of endorser-Tht endorsement of a negotiable note is separate and Independent contract on fhn arf nf hn note on due presentment and notice of dishonor, that the signature of prior parties to the note and the endorse ment are genuine, that the endorsement Is valid according to its purported ef- feet. that the parties thereto are com- petent to contract. and that the en- dorser has title and right to transfer
 6. Exemptions; waiver; endorsement Where an endorser signs the note by simply writing his name upon 1t, waiver of personal property contain ed in the note stating that I've, each. whether maker or endorser. hereby waive all right of exemption. etc." does not operate as a waiver of exemp- tions on the part of the endorser, since the maker could not waive for the endorser, and his signature to the note is not in compliance with Section 4232. Code 1907, and Section 210 Constitution 1901.
 Appeal from Anniston City Court. Heard before Hon. T. w. Coleman, Jr.
 Modified and affirmed. Opinion by Simpson, J.
 Tyson, C. J., Dowdell and Denson JJ., concur.
 LOUISVILLE & NASHVILLE R. R. co V. CANNON. IlnfO fad fn Tof a Wrong Train .-(Decided December r, 1908. 4S South. 64.) l. Carriers; passengers: complaints | variance An allegation in com- plaint against a railroad company be- | cause it's gateman at a union station misdirected plaintiff as to a train of another road, which alleges that plain l tiff purchased his ticket over such oth- CT road from defendant and that de- | fendant sold him the ticket, is not sup ported by proof that the ticket agent | at the union station sold tickets for all l the roads entering the union depot; and | this allegation Is descriptive of the | wrong imputed to the defendant, and must be proven, although the conn plainant might have confined his aver ments to the fact that he purchased | the ticket without alleging that it was l purchased from and sold by the de- fendant.
 3. Same; passengers; liability; joint | agent Where the complaint sought to 1 fix liability on defendant on the ground | that the gateman was its agent, and not for the wrong doing of joint agent. to whom defendant with others l bore the relation of principal, proof l that the gateman was servant of the l defendant, and while acting within the scope of his employment as such neg l ligently misdirected plaintiff as to his train, and that as a proximate conse- quence thereof plaintiff suffered injury will authorize a recovery, irrespective of the proposition that if the gateman | was the joint agent of the several roads entering the union depot, de- fendant could be liable only in conse- quence of the negligence with respect to duties owed in performance by such | joint agent to defendant. l Appeal from Montgomery City Court.
 Heard before Hon. A. D. Sayre. | Reversed and remanded. Opinion by l Mcclellan, J.
 Tyson. c. J.. Simpson and Denson. JJ., concur.
 l BARRETT, EFT AL. V. DOE FIX DEM {.
 McCARTY.
 Ejectment .-(Decided November 12,
 1908 4S South. 49.) (Reh ear
 ing denied December "A, 1908.) q.
 1. Ejectment; evidence; deeds. - Where 1t did not appear that the de- fendant's grantors were in possession of the land at the time of the execu-