
    Western Railway of Alabama v. Arnett.
    
      Action against Railroad Company by Employe to recover Damages for Personal Injuries.
    
    1. Appeal; rulings of court not reviewed when not insisted on in argument —On an appeal where counsel for the appellee does not, in his argument, insist upon certain rulings of the trial court, it will be presumed such rulings are waived, and they will not he reviewed.
    2. Same. effect of general assignment of error. — Where in assigning errors upon rulings of the court in sustaining demurrers to several pleas, the assignment of error is not based upon these rulings severally, but upon them as a whole, if any of the grounds of the demurrer to either of the pleas was properly sustained, the ruling of the court in sustaining .the demurrer will be upheld.
    3. Fraud; ■written instrument vitiated thereby. — Where the execution of a written instrument is obtained by misrepresentation of its contents, and a party is induced by said fraud to sign an instrument which he did not intend to sign, the party so defrauded can avoid the effect of his signature because of the fraud practiced upon him, notwithstanding the fact he may have neglected to read the instrument or to have it read to him.
    4. Action against railroad company; sufficiency of replication charging fraud, in procuring release set up by special plea. In an action against a railroad company by an employe to recover damages for personal injuries, where the defendant by special plea sets up that before tlie institution of the suit the plaintiff, for a valuable consideration, compromised and settled all claim which he had, against the defendant for such injuries, and the receipt and discharge is set out in full in such plea, a replication to such plea which avers that the settlement, discharge and compromise set out in the plea was procured by the misrepresentation of the defendant, and the facts constituting such alleged fraud are set out at length therein, a suff'cient replication to avoid the defense set up, and is not subject to demurrer.
    5. Same; sufficiency or rejoinder. — In such case a rejoinder which sets up that plaintiff “ought to have known the contents of such release set forth in defendant’s plea,” and although there was such duty on his part to know its contents the “plaintiff has never offered to return to the defendant the consideration received by him for the execution of said release.” is insufficient and subject to demurrer.
    6. Same; siifficiency of plea. — In an action against a railroad company by an employe to recover damages for injuries sustained by being thrown from'a hand-car, a plea which sets up that plaintiff proximately contributed to the injury complained of in that after releasing his hold upon thie lever which he had been assisting in propelling, he “squatted or stooped down and took hold of a certain beam or brace on such car, which he knew or by proper diligence could have known was loose or insecurely fastened, and by reason of such defect in said brace or beam plaintiff fell or was thrown from the car and received the injuries complained of,” is insufficient and subject to demurrer in that it does not postulate that the plaintiff was negligent in taking hold of the said brace or beam.
    7. Action against tailroad company by an employe; admissibility of evidence. — In an action against railroad company by an employe to recover damages for personal injuries alleged to have been sustained by being thrown from a hand-car, and alleged to have been caused by the negligence of the defendant, where defendant sets up as its defense the contributory negligence of the plaintiff, and to sustain such defense introduces evidence tending to show that just before the injury the plaintiff had been .assisting in propelling the hand-car on which he was riding by means of a lever, and that he was standing with his back towards the direction in which the car was going, which was in violation of the instructions of the section foreman, it is competent for the plaintiff, on being examined as a witness, to testify as to whether the position he was occupying was the usual or customary position for a man to occupy in propelling the car.
    8. Same; same. — In such a case where, in addition to the facts above stated, there was also evidence for the defendant tending to show that the correct position for the plaintiff to have occupied while propelling the car was to stand behind the lever, it is not competent for the defendant to ask the section foreman “If it was possible for the plaintiff to have fallen as he did if he had been behind the lever?” such question calling for a conclusion of the witness.
    
      9. Same; same. — In such a case it is competent on cross examination of the section foreman, who. had testified to his having previously given instructions to the section hands to stand behind the lever when propelling car, to ask -such witness if he made any objection to the way in which the section hands were propelling the car at the time plaintiff was injured.
    10. Same; same. — In such a case it is not competent for the defendant to ask the section foreman as to whether he “ever gave them (the section hands') any orders on any other day?” or “when did you give them any instructions?” such questions not being limited in their scope as to the matter at issue.
    11. Action for negligence; where general affirmative charge should he given. — In an action against railroad company by employe to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, where one of the counts of the complaint fails to state a cause of action and the negligence alleged in the other counts is not sustained by the proof, the general affirmative charge should be given at the request of the defendant.
    ■Appeal from the City Court of. Montgomery.
    Tried before the Hon. A. I). Sayre.
    This was an action brought by the appellee, W. T. Arnett, against the appellant, The Western Railway of Alabama, in which the plaintiff claims .$5,000.00 for personal injuries received by him while in the employment and service of the defendant as section hand or laborer on the track of defendant’s road. The complaint contained four counts, and the averments of negligence as contained in said counts are as follows:
    The first count charges that while plaintiff was riding on a hand car and supporting himself by holding to a certain brace thereon one of the other section hands on said car, acting under instructions and direction of the foreman, negligently and without warning to the plaintiff, appliexl the brakes to the wheels of said car, thereby suddenly checking the speed by reason of which plaintiff’s weight and body was thrown violently against, said brace, causing said brace to turn, give way, or break, thereby precipitating plaintiff violently to the ground in front of said car when said car then and there ran over plaintiff, etc.
    
      The second, count charges negligence of one. S. I. Gol-. den, section foreman, having superintendence and control of said-car and the section hands thereon, in causing the speed of said car to be suddenly checked without wanting to plaintiff, thereby causing, plaintiff to fall and receive the injuries complained of.
    The third count charges that the injury complained of was caused by reason of defects in the condition of said lever car on which plaintiff was riding in that a certain brace or beam which had been used in supporting what is called a running board on said car, was insecurely fastened to said car and by reason thereof said brace, gave, way, broke or turned, thereby precipitating plaintiff-' to the ground, from which he sustained the injuries complained of.
    The fourth county charges negligence in general on the part of said Golden in operating, or causing to be operated, said car without specifying any particular act of negligence.
    The defendant demurred to each of the counts of the complaint, which demurrers were, overruled, but under the opinion it is unnecessary to set out these grounds of demurrer; the mling of the court not being insisted upon in argument. •
    The defendant, pleaded the general issue and several special pleas, setting up contributory negligence of the plaintiff and other defenses. Among the pleas setting up contributory negligence were the' following: a'-’fh.
    For further answer to the third count of the complaint the defendant says that, plaintiff had knowledge that the brace or beam therein referred to was insecurely fastened to said car and with this knowledge he .rode upon said hand car and assisted in propelling the same.” “14-th. And for farther answclv to the complaint, and each count thereof separately, defendant says, that plaintiff: caused or proxima.+ely contributed to the injury complained of in this, that while he was standing on the front end of said car, with his hack in the direction in which said car was moving, said car was running a.t the rate of four or five miles an hour, and while lie was holding on to a lever and. assisting in propelling said ear, lie released liis bold upon the same, and stopped or squatted down and took bold of a certain beam or brace on said car wbicb be knew, or by proper diligence could have known was loose, or insecurely fastened, and by reason of said defection in said brace or beam plaintiff fell or was throAvn from the car and received tbe 'injuries complained of.”
    Tbe 4tb and 5th pleas were as follows: “4th. For further answer to the complaint defendant says, that it has paid the demand for the recovery of which this suit avhr brought before the action was commenced.
    “5th. For further answer to tbe complaint the defendant says that, for the alleged injury to plaintiff, to-wit, on the 5th day of Jan. 1900, it compromised and settled any and all claim which plaintiff had against, the defendant for said .injury for a valuable consideration and took his written release therefor in words and figures as follows, to-Avit:” Then follows a written instrume it signed by plaintiff, which is. a release and discharge in full of defendant, for damages resulting frotar said injury;' tbe consideration expressed, being the payment to plaintiff of $35, tbe receipt of wbicb is acknowledged.
    Tbe plaintiff demurred to each of the special pleas. The demurrers to the 2d, 3d and 8tb pleas were sustained. The grounds of demurrer to the 8th plea were as follows : “1. Said plea does not slum when the plaintiff obtained knowledge that the brace or beam on said car was insecurely fastened. 2. Said plea does not allege or shoAV that tbe plaintiff bad been afforded a reason aide opportunity to inform thei defendant, or its' agent of said defect.”
    The assignment of error based on the ruling of the court in sustaining the demurrers to pleas 2, 3, and 8 Avere as folioAvs: “The court erred in sustaining plaintiff’s demurrers to defendant’s pleas numbered 2, 3, and 8.”
    The 7th and 9th pleas Avere stricken on motion of the plaintiff, but under the opinion it is unnecessary to set out at length these pleas or tbe motion.
    ■ 'To the 14th plea the plaintiff demurred, upon the folloAving grounds: “4. It is not shoAvn in said plea that plaintiff knew or had reason to believe that there was a safer and better wa.y for him to perform his duty while on said car. 2. The fact that said car was suddenly jerked by the negligent act of the defendant’s agent was not denied in said plea, nor does said plea s-et up any matter in avoidance of such allegation.' 3. The facts set forth in said jilea, do not sustain the conclusion therein averred that the negligence of plaintiff prcximately contributed to the injury complained of. 4. Said plea fails to- aver that it was the duty of plaintiff to hold on to the lever or crank of said car at the time he received the injuries complained of. 5. Said plea docs not show when the plaintiff obtained knowledge that the brace or beam on said car was insecurely fastened. 6. Said jilea does not allege or show that plaintiff had been offered a reasonable ’ opportunity to inform the. defendant, or defendant’s agents of said defect. 7. Said jilea is not an answer to- the first conn! of the complaint.”
    The demurrer to the 14th plea was sustained. The demurrers to the pleas other than those! just above referred to were overruled.
    To the- 4th and 5th pleas the plaintiff filed a general rejfiicatiou, taking issue- thereon, and also thei follow.iug sjiecial replication: “1. And for replication to pleas 4 and 5, respectively, plaintiff says that shortly. after be received flu* injuries complained of in bis complaint, and while at bis borne confined to bis bed on account of said injuries, and while suffering great and intense pain therefrom, an officer and agent of the defendant corporation came to plaintiff’s home, and stated to him substantially as follows: That one Smith, who plaintiff avers, was then the president of the defendant corporation, desired to- make plaintiff a present of twenty-five dollars; that plaintiff ivas a white- man and he felt sorry for him, and thereupon handed to plaintiff |25 in, money, and then and there stated to plaintiff that the defendant company would look after him when he got well, and give him a permanent job when he got up-, and thereupon produced a pajier which said officer or agent held in his band, and requested plaintiff to- sign. Plaintiff thereupon asked what the jiaper was, to which said officer or agent replied that it did not amount to anything; that it was sdímply a paper stating that plaintiff had no ill will or hard feelings against defendant company; that plaintiff did not, read said paper and did nor know the contents thereof, but, acting and relying upon the statements of said officer and agent, under, the circumstances hereinabove set. forth, signed the same. Plaintiff had no knowledge of the contents of said paper, and he signed no other paper purporting to he a. release of said claim except as hereinabove mentioned, nor did he ever receive any money from the defendant in payment of hi a claim, nor has said claim ever been paid or satisfied in any way.”
    To this replication the. defendant, demurred upon the following grounds: “1. Because the matters therein set forth are not sufficient to avoid the legal force of the facts set forth in said pleas. 2. Because it-attempts to vary by parole the terms and conditions of a written contract. 3. Because the facts therein set forth show that it was plaintiff’s duty to have read said paper before signing the same, and that he is bound by the same whether he read it or not. 4. Because it shows that plaintiff could by reasonable and proper diligence on his part, have known the contents of said paper. ' 5. Because thei tacts therein set forth show that plaintiff is hound by the conditions of the paper that he did sign, whether he knew tire contents thereof or not. 6. Because said replication does not show that plaintiff has ever offered to return, tos the defendant the consideration set forth in the release set up, in said Xrleas. 7. Because it does, not show that plaintiff could not read or was otherwise prevented from ascertaining the contents of said paper.” This demurrer was overruled.
    The defendant filed the following rejoinder to the plaintiff’s special replication to pleas 4 and 5: “Comes the defendant and for rejoinder to> plaintiff’s replication to pleas Nos. 4 and 5 says, that plaintiff was a man of intelligence and education and could read and write and was fully capable of making a contract, rationally, and that while in this condition he received the paymeut, referred to in defendant’s pleas Nos. 4 and 5 and executed tlie release set out in plea 5, and that the tinxe he received it he either knew or ought to have known the contents of the said lhlease set forth in defendant’s plea No. 5; and defendant avers that plaintiff with this ■knowledge or duty has never offered to return to defendant. the consideration received hv him for the execution of said release.” The demurrer to this rejoinder was sustained.' issue was then joined upon the pleas .as stated in the opinion.
    On the trial of the. ease! the following facts were shown hy the. evidence without conflict: At the time of the injury complained of plaintiff was in the employment of the defendant, as section hand on its road, and was under the superinlendence, direction and control of one S. X. Golden, who was section foreixian. Just preceding the injury to the plainitff the foreman and the section hands started from their work over to the section house for dinner. For this purpose they hoarded a hand or lever car. There were on this car Golden and the plaintiff, and four other section' hands. The oar was. equipped with a lever which had two handles, one in front and one in the rear, by means of which the car was propelled. Two of the section hands used the rear handle of the lever and the remaining three section hands including the plaintiff, use|d the front handle of the lever. The other four section hands stood behind the lever handles with their faces in the direction in which the car was going. The plaintiff stood between the two other section hands who were working the front handle of the lever, and his hack was turned towards the direction in which the car was going.. When within a short distance of the section house, where the car Avas to he stopped, the section-hands ceased to propel the lever and. took their hands therefrom. Thereupon the plaintiff squatted down from where he had been standing. It AAras while in this position that plaintiff fell off. The car ran over the plaintiff, breaking one of his legs near the hip joint, and inflicting ■other injuries. On the side of the ear nearest Avhich the plaintiff squatted down after1 releasing the lever handle, there was a brace.or beam which was used to support a running board. The evidence of the plaintiff tended to show that after he had released the- lever handle and stooped down in a sitting position, just before reaching the required stopping place, and while his back was turned to Golden, the section foreman, one of the section hands on said car, in obedience to instructions from said Golden, suddenly applied the brakes on said car without giving notice or warning to plaintiff, and that by reason of the sudden jerk'-thereby given the car plaintiff's body was thrown violently against the brace or beam on the side of the car, which brace or beam turned, or gave way, and plaintiff was thrown to the ground in front of the moving car; that the plaintiff’s position and the condition of the car was well known to the foreman Golden, and that there was no other feasible or safe place for the plaintiff to occupy while performing the duties required of him.
    The evidence for the defendant tended to show that plaintiff was in the act of falling when the foreman Golden gave the order to apply the brake and when the brake was applied; that tire order was given for -the purpose of preventing him from falling; that the proper place for him to have worked in propelling said car was behind the lever with his face turned in the direction in which the car was going and not in the position which lie occupied. Defendant alsoi introduced evidence tending to show that the sum of $25 had been paid the plaintiff in full settlement and discharge of all damages therefrom by plaintiff for injuries sustained in falling from said car; that the plaintiff had executed to the defendant a written release, which was -copied in the 5th plea and which was produced in evidence; and that at the time of the execution of this written release the meaning of the release and what was contained therein. was explained to plaintiff by defendant’s- agent.
    In rebuttal the plaintiff testified, and he also introduced other evidence tending to show, that he had never been paid anything by the defendant, in settlement of his claim for damages against the defendant; that he had never executed a release or discharge of the defendant of said damages, and that while he was in bed on account of said injuries, the general paymaster of the defendant came to his house and gave him $25.00 in money, stating that it was a gift from the president of the road, and that upon said paymaster asking him to sign a paper which was presented to him, and upon his asking said paymaster what, is was, he ivas told that it amounted to nothing, and was a, statement on the plaintiff’s part that he bore no ill will towards the defendant; that the plaintiff did not read the paper, nor ivas it read to him, nor did he know its contents, hut acting on the statements made him by defendant’s paymaster he signed it.
    Among the (‘barges requested hv the defendant., to ilie refusal to give each of which the defendant separately excepted, was the. general affirmative charge in its favoi*. There were verdict and judgment for the plaintiff assessing his damages at $1,500.00, and there was a motion made by defendant for new trial upon the grounds that the verdict of the jury was contrary to the law and the evidence,.and that the court erred upon its rulings during the trial. The motion was- overruled and defendant duly excepted. Defendant appeals and assigns as error the several rulings of the trial court to which exceptions Avere reserved.
    Gko. P. Harrison, for appellant.
    It has been -well settled by this court that if there are t!wo apparent ways of discharging the required service — one more dangerous than the other — -the employe' is hound to select the latter and is guilty of such negligence as Avill bar an action for damages if he selects the former and is thereby injured. — Mobile & Ohio R. R. Co. v. George, 94 Ala. 199; Jj'ov-isinlle cG Nashville R. R. Co. v. Orr, 91 Ala. 548; Memphis cG Charleston R. R. Go. v. Graham, 94 Ala. 545.
    The court erred in (wer ruling the defendant’s objection to the question asked the nlalntiff when being ex-amiued as a witness, as to whether the position he ocounied just before the iniurv was the usual and customary position for a man to occupy. Custom and usaare is not admissible to justify the doing of an art-which is negligent per se. — Andrews Case, 99 Ala. 438.
    
      Custom of going between moving cars to make coupling hold not admissible. — M. A O. R. R. Co. v. Graham, '94 Ala. 545.
    Custom to ride on pilot oí an engine held not admissible. — Warden v. E. A N. R. R. Co., 94 Ala. 277.
    Custom of walking on railroad tracks not admissible. Glass p. M. A C. R.' R. Co., 94 Ala. 581.
    • One cannot relieve himself from tire effects of negligence by showing the custom to do such acts. — George v. ¥. A O. R. R. Go., WO Ala. 256; Hill r. Birmingham Virion Rail wag Co., 100 Ala. 437.
    An employer need not warn an employe of apparent defects and obvious dangers. — Holland v. T. G. AH. R. R. Co., 91 Ala. 444; L. A N. R. R. Co. r. Boland, 96 Ala. 626; Same Cane, 106 Ala. 641; E. T. V. & G. R. R. Co. r. Turradle, 97 Ala. 122; L. & N. R. R. Co. r. Bands, 104 Ala. 508.
    If the employe, while engaged! in the service, acquires knowledge of any defect, in the materials, machinery, or instrumentalities used, and notice 'thereby of an increased risk of danger, and afterwards continues in the service, without objection or notice to the employer, he assumes the increased risk himself; but he may notify the employer of the defect, and continue in the service for a reasonable time, relying on the proanise of the employer to remedy the defect. Yet, if the defect, is not remedied within the promised time, his further continuance is at his own risk, and. he is guilty of contributorv negligence. — Alabama Great Southern R. R. Co. r. baris, 119 Ala. 572; /,. & K. R. R. Co. r. Stutts, 105 Ala. 376; Birmingham R. A Electric Co. v. Allen, 99 Ala. 359; (leorg-iu Pacific R. Co. r. Darin, 92 Ala. 309; E A Y. R. R. Co. r. ' Hall, 87 Ala. 708; Etire],-a (h). p. Bans, 81 'Ala. 201.
    Lomax, Crum & Weir and Gordon Macdonaep, contra.
    
    The replication to pleas 4 and 5 was sufficient, and the rejoinder to the. replication was insufficient. Bed; r. Houppert, 104 Ala. 503; The BanJ; of Gunfeisrille v. Webb, 108 Ala 132; Tillis r. Auslm, 117 Ala. 262; Folmar v. Siler, 132 Ala 297; 31 Bo. Rep. 719; 1 ¿laggard on Torts, § 107.
    
      ■ There was no error in the ruling of the conrt upon .the charges requested. — Holland v. Tennessee C. 1. & R. R. Co., 91 Ala. 454; L. & N. R. R. Co. v. Tanner, 60 Ala. 621.'
   HARALSON, J.

The defendant demurred to the counts in the complaint, which were overruled. Errors were assigned for the overruling of these demurrers, hut they are not insisted on in argument, and are therefore waived. The samel is true of the ruling of the court in striking pleas 7 and 9, the basis of assignment of error numbered 4.

It, may be said as to sustaining the demurrers to pleas 2, 3, and 8, that if -any of the grounds were properly sustained, the assignment of error cannot he allowed, for the reason that, it. is. not, based upon these rulings severally, hut upon them as a whole. Sustaining the demurrer to the Sth plea was good, and, therefore, the ruling sustaining the demurrers to, the three pleas was without error. — Goodwin v. Whitehead, 95 Ala. 409; Kennon v. W. G. T. Co., 92 Ala. 399; Coleman v. Pike County, 83 Ala. 326.

Tiie 4th plea was payment, and 5th, that the defendant, before suit commenced on January 5th, 1900, for a valuable consideration, compromised and settled all claim which plaintiff had against, it for said injury. Said receipt is set, out in full in the plea. The plaintiff replied, taking issue on the pleas, and specially, that said alleged compromise wa,s procured by the fraud and misrepresentations of defendant. If the facts set up in this replication are true, the plaintiff, though he executed said receipt and acquittance, was not bound thereby. When, the execution of a written instrument is procured by a misrepresentation of its contents, and the party is induced hv such fraud to sign it when he did not know he was signing such a,n. instrument, and which he did uot intend to sign, the party so defrauded may avoid his signature, because 'of the fraud practiced upon him, notwithstanding he may have neglected to read the instrument, or have it read to him. Bat. he must establish the fraud hv clear and! satisfactory proof. — Beck v. Houppert, 104 Ala. 503; The Bank of Guntersville v. Webb, 108 Ala. 132; Tillis v. Austin, 117 Ala. 262; Folmar v. Siler, 132 Ala. 297; 31 So. Rep. 720.

Nor was there error in sustaining the demurrer to the rejoinder of defendant to plaintiff’s special replication to píelas 4 and 5 for the reason, that, the rejoinder sets up that the plaintiff “ought to have known the contents of the said release set, forth in defendant’s plea No. 5,” and with the “duty to know, has never offered to return to defendant the consideration received by him for the execution of said releíase.” Without knowing what the release contained, it was not binding on him. Moreover, the replication set up, that the $25 was a gift by defendant to plaintiff. If so, he was under no1 duty to return it.

Plea 14 vais had in that it does not postulate that the plaintiff was negligent in taking hold of the beam. The fact that he took hold of the beam which he ought to have known was loose, was not negligence as a matter of law,'and the'pTea does, not allege it was. negligence in him to do so.

The case was tried upon the several counts in the complaint, with general issue thereon, on pleas 6. 10, 11, 12, and 13, and on plaintiff’s replication to pleas 4 and 5.

The plaintiff', when examined as a witness for himself, gave an account of the movements of the handcar from which lie was, thrown, and which he was assisting in propelling, the condition the car was in and the position that lid and others occupied on it at the lime. He said that, the parties who operated the crank were standing, two operating the lever in the rear and three; in front; that he was one of the three who were working it in front, and that he was in front of the lever, cranking in the center. At- this point his attorney asked him : “Was that the usual and customary posilion for a man to occupy?” The object of the question, — for which it was proper, — was to show, that plaintiff had not assumed an unusual and dangerous position on the car while he was in discharge of his duty, and not as contended by defendant, to establish a custom to justify the doing of an act which Aims negligence per hc.

Golden, a Avitness for defendant, testified to being on the car; that he did not remember paying any attention to plaintiff after he got on the car, before he turned tlie lever loose; that he did not knoAv Avhat he aa as doing Avhen lie fell, and was falling at the time he saw him, at Avhich time, Avitness threw up his hands for brakes Avhich had not. been on. before he discovered plaintiff; that he fell like he was going off headforemost., and that plaintiff was falling in front of the lever. Here, the defendanta’s attorney asked him: “If it was possible for him to have fallen as hei did, if he had been behind the lever?” To this question, before it was answered the plaintiff objected, but the witness answered that he could not have fallen if he had been behind the lever, and plaintiff moved to exclude the ansAver which was clone. It called for a. conclusion of the Avitness, and not for a fact, as to a matter proper for the consideration a.nd determination of the jury, on facts stated. That the witness was section foreman, made no difference as to the proper exclusion- of the an-SAver.

This witness shown to be fore|ma.n in charge of the car, Avas asked on the. cross, if he made any “objection to the way in which they [the, men operating- the crank or lever, including plaintiff] Avere handling the car, and the way they Avere cranking?” and he answered, “No sir.” ’He further stated that he made no objections to the position they Avere occupying on that occasion, and he gave them no orders to occupy any other position on that occasion. The question- Avas proper on the cross. Golden had testified that he had given orders that none of the men should stand in, front of the car to pull, and the answer was pertinent as going to his credibility, in that he saw him in front and did not object to it..

On the re-direct, examination, defendant asked him: “Did you ever give them any orders on any other day?” An objection Avas pronerly sustained to the. question. The question as propounded embraced any kind of orders, and not especially orders about the position the parties on the car occupied when propelling it. The court cannot be put; in error for disallowing so general and indefinite a question. It should have been limited in its scope to the matter then in hand. The same difficulty befalls the other question following the. last one: “When did you give them any instructions?” ■

We need not refer to the charges which were given and refused, to the giving and refusal of which defendant excepted, except to the 1st, — the general charge1' for the defendant, — which was refused.

The first count in the complaint fails to state any cause of action, in that the negligence averred is attributed to one of the section hands, a fellow servant, not acting in the capacity of superintendence.

The defect in the brace or beam as alleged in the 3d count, for the purposes for which it. was intended, did not exist, and the. brace for such purposes was not shown to have been defective at. all, so .that it may be said the averments of negligence in this count were not proved.

The only evidence relied on to support the 2d count is, that Golden, the foreman, negligently ordered brakes applied without notifying the plaintiff, or the crew that he was going to give the order. The ear, according to plaintiff’s testimony, was within about 30 yards of its destination, the tool house, and after they had gotten within 5ft or 60 yards of that house, they had speed enough to run there with1 the momentum of the car, and the propelling lever was let loose in order for the car to have its own speed to the house. When about 30 yards from the house one Lucius Gibson applied the brake suddenly and plaintiff was thrown off the car. It- was not shown that Golden’s directions for brakes was to apply them in any particular manner, nor that there was a,ny negligence in giving the order. The evidence. therefore, fails to support counts . of the complaint, and the general charge should, as requested, have been given for defendant.

Reversed and remanded.  