
    Hood v. Pioneer Mining & Manufacturing Co.
    
      Action for Damages against Employer, by Administrator of Deceased Employe.
    
    1. Presumption in favor of judgment. — When a ease is submitted to the decision of the court without a jury, and the bill of exceptions does not purport to set out all the evidence which was adduced, the appellate court will presume, if necessary, that the judgment was justified by other evidence which is not set out.
    2. Exception to judgment, or conclusion of court on evidence. — TSnder a statute which gives either party the right, “by bill of exceptions, to present for review on appeal the conclusions and judgment of the court upon the evidence,” the appellate court can not revise the judgment unless a bill of exceptions was reserved.
    3. Variance in description of injuries complained of. — Where the complaint alleges that the plaintiff’s intestate was killed in the discharge of his duties as brakeman, “while ascending the side of the car,” by coming in contact with a water-tank which had been placed too near the railroad track, and the evidence shows that, when struck by the tank, he was standing on the platform between two cars, with his back towards the tank, the variance is fatal.
    4. Dying declarations are not admissible as evidence in a civil action for damages against the employer, by the administrator of a deceased employe.
    Appeal from tbe Circuit Court of Jefferson.
    . Tried, before tbe Hon. James B. Head.
    Tbis action was brought by the administrator of Joseph J. George, deceased, who was killed while in the discharge of his duties as brakeman on the railroad of the defendant corporation; and was founded on the statute.- — Code, § 2590, The case was submitted to the decision of the court without a jury, but no exception was reserved to the judgment or conclusion of the court on the evidence, though several exceptions were reserved to its rulings in excluding evidence. These exceptions related to several portions of the testimony of absent witnesses, on a showing made for a continuance, which was admitted subject to legal objections, and consisted (1) of the testimony of a witness as to the position of the intestate when he was struck by the water-tank, and (2) of the dying declarations of the intestate on the same subject. These rulings, and the judgment of the court on the evidence, are assigned as error.
    MARTIN & MoEachin, for appellant.
    Webb & Tillman, contra.
    
   COLEMAN, J.

The judgment, in our opinion, must be affirmed for several seasons. The bill of exceptions does not purport to set out all the evidence. It was declared in Griggs v. State, 58 Ala. 425, that “where certain evidence is set out in the bill of exceptions, but it is not expressly stated that it is all the evidence, the appellate court can not hold that the bill of exceptions contains all the evidence.” We have uniformly held to the rule, that unless the bill of exceptions showed that all, or substantially all of the evidence, was set out, this court would presume, in order to sustain the ruling of the lower court, there was other sufficient evidence before the court, not stated in the bill of exceptions.

The act to regulate the practice and proceedings in civil cases in the Circuit Court of Jefferson county, and in the Supreme Court on appeal from judgments rendered in said cases (Acts 1888-9, p. 797, § 7), provides, tbat “either party-may, by bill of exceptions, also present on appeal, for review, tbe conclusions and judgment of tbe court upon tbe evidence,” &c. Tbe record fails to disclose tbat there was any exception reserved to tbe conclusion and judgment of tbe court upon tbe evidence. Not having reserved an exception to tbe judgment of tbe court, this court, by tbe terms of tbe statute, is without authority to review tbe correctness of tbe conclusion and judgment of tbe court on appeal.

There are exceptions reserved to tbe action of tbe court in excluding certain evidence offered by plaintiff. Tbe complaint distinctly avers tbat plaintiff’s intestate, “while ascending tbe side of tbe car, came in violent contact with a tank which bad been erected too near tbe railroad track to permit tbe body of tbe decedent to pass between tbe same and tbe side of the car.” There is but one countin tbe complaint, and this count distinctly avers tbe cause of action, and clearly states what decedent was doing and bow tbe injury came to be inflicted. Tbe evidence offered, if admissible, tended to prove tbat decedent was standing on a platform between two cars, with bis back toward tbe tank, and extending out but a little beyond tbe sides of tbe cars. This evidence tends to prove a different case from tbat of which tbe defendant was informed by tbe complaint. It was clearly a variance between tbe averment and proof. Plaintiff did not offer to amend bis complaint. — Prior v. L. & N. R. R. Co., 90 Ala. 35; North Birmingham St. R. R. Co. v. Calderwood, 89 Ala. 254.

Dying declarations, as such, are inadmissible as evidence in an action of this kind. — 1 Greenl. § 156; Johnson v. State, 50 Ala. 458.

Under any view we may take of tbe case as presented in tbe record, there is no error available to appellant on this appeal.

Affirmed.  