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count 1, and there was no error in overruling the demurrer thereto, for the reasons stated as to said count 1. In upholding these counts, however, we do not wish to commend them as models of good pleading, and repeat that much confusion could have been saved by setting out what the intestate was doing on the street or track when run over or against as well as the nature or character of the track at the point of the injury.

ed to." So this case rather supports, instead of opposes, the present holding. In the case of Savannah, A. & M. R. R. v. Buford, 106 Ala. 309, 17 South. 395, the demurrer was not disclosed by the record, and the court assumed that the plea, as amended, met the defect pointed out by the demurrer. In the case of Western Union Co. v. Crawford, 110 Ala. 460, 20 South. 111, the court declined to consider the demurrer, because the record did not set qut the complaint to which it was directed. The record did [6] Count 4 is bad, and was subject to not disclose with certainty the ruling com- the defendant's demurrer. It does not aver plained of upon the demurrer. In the case that Gillespie (or Dykes) was the agent or of Syson v. Dickenson, 146 Ala. 471, 40 servant of the defendant or that he was South. 753, the record does not show the in charge of or operating the car for the nature of the amendment, but what was defendant, or that the car operated by him said on the subject was gratuitous, for, aft- was the defendant's car. The only averment er discussing the question, the writer says: in the count which can connect the defend"Moreover, this ruling is not insisted on as ant with the wrong in the slightest degree error in argument." The report of the case is that Gillespie (or Dykes) ran the car upon of Cooley v. U. S. S. Co., 144 Ala. 538, 39 or against the deceased at a certain point South. 515, does not disclose the amend-on Nineteenth street where the defendant was ment, but the opinion recites that the repli- operating a street car line and used cars cation was not the same as it was when the drawn or propelled by electricity for the court overruled the demurrer to it, and we transportation of passengers upon said can assume that the amendment was ma- street. It does not even aver that the car terial, else the court should have considered in question was on its line, as there may the ruling on the demurrer, though not refiled. The case of Harrison v. Ala. Mid. R. R. Co., 144 Ala. 246, 40 South. 394, recites approvingly the rule as laid down in the Woods Case, supra, but concludes with this statement: "However, the grounds of the objection to the original pleas were obviated by the amendment." This being true, the demurrers should, of course, have been refiled to the amended pleas. In the case of Western Union Co. v. Louisell, 161 Ala. 231, 50 South. 87, the court held that, if the amendment wrought a material change, the demurrers should have been refiled, but declined to determine whether or not it was necessary to refile demurrers when the amendment to the complaint wrought no

have been another street car track at the

said point on Nineteenth street, and Gillespie (or Dykes) may have been running said car

on another line on said street for himself or some company other than defendant.

strued most strongly against the pleader, but this rule is not needed to condemn count 4, as it cannot be well construed to charge negligence or a cause of action against this defendant. While our system of pleading is most liberal, it does not uphold a complaint which does not connect the party sued directly or indirectly with the injury set out. Gordon v. Tenn. Co., 164 Ala. 205, 51 South.

[7] A complaint on demurrer must be con

316.

front of and in dangerous proximity to the approaching car and was bad for this reason, but, if said plea could be construed as meaning that she negligently did so, it would be but a duplicate of plea 8, and under which the defendant got the full benefit of

material change, preferring to pretermit the [8] Plea 7 failed to aver that the intestate question, as the case had to be reversed up-negligently attempted to cross the track in on other grounds. We have attempted to go through and discuss all the cases bearing on this question, and, while there is conflict in the declarations as to the rule, there is little, if any, conflict in the actual ruling in said cases, but, in order that there may be less confusion in the future, we hereby mod-plea 7. ify and limit said cases in so far as they may collide with the rule above enunciated. We therefore hold that the amendment to counts 2 and 4 only changed the name of the motorman, and in no way materially affected or obviated the defects attempted to be reached by the demurrer, and in this respect the amendment wrought no change in said counts, and the defendant did not waive rulings, on its demurrers to the said counts, by failing to refile its said demurrers after the amendment.

[9] The bill of exceptions was signed within the time prescribed by the statute by Judge Senn, judge of the city court, and who tried the case, and the fact that he was ill and was not at the time of the signing of the bill in the actual discharge of his duties as a trial judge, and that a special judge, designated under the terms of the act of Loc. Laws 1907, p. 254, was then holding court in his place, did not invalidate his act in signing said bill of exceptions. He was still a judge, and there was no vacancy or

.

this act was merely to provide for an additional judge to hold court for and discharge the duties of the absent regular judge, and not to curtail or abridge the term of the incumbent. This court held in the case of McGhee v. Reynolds, 117 Ala. 413, 23 South. 68, that the bill of exceptions there was properly signed by Judge Speake, the regular judge, notwithstanding it was signed during a term of the court which a special judge had been designated to hold and before the expiration of the tenure of the special judge. It may be that the two statutes are not identical, but their general meaning and purpose is the same, and the Legislature did not intend that the regular judge would be so shorn of all his rights and powers as to deprive parties from getting a bill of exceptions in cases previously tried by him. The Legislature could probably abolish the office, as it was not created by the Constitution, but it is doubtful if it could create a vacancy or hiatus in the term, except for grounds provided in the Constitution, and Senn was still a judge. Moreover, section 161 of the Constitution merely authorizes the Legislature to provide for the holding of courts when the judge or chancellor fails to attend, and does not contemplate an abridgment or curtailment of the powers of the regular judge. The motion to strike the bill of exceptions is overruled.

[10] There was no error in refusing charge 2 requested by the defendant. If not otherwise bad, it pretermits knowledge of the approach of the car.

[11] Moreover, if correctly framed it would be abstract and misleading under the peculiar facts of the case. The intestate was in imminent peril from the approach of the north-bound car, and was endeavoring to avoid being run over by it, and in a mad rush for safety was not, as matter of law, guilty of negligence in attempting to cross the next track, the one upon which she was struck.

[12] As a rule, one who suddenly acts wildly and madly, when unwarned peril surrounds him, is not as matter of law chargeable with contributory negligence for failing to exercise the obligations of care and prudence imposed upon a prudent man under normal and ordinary conditions as instinct would prompt him to use diligence to save his life or insure his safety, and the law wisely leaves it to the jury to determine whether or not his conduct under such circumstances amounts to negligence. L. & N. R. R. Co. v. Thornton, 117 Ala. 282, 23 South. 778; R. & D. R. R. Co. v. Farmer, 97 Ala. 141, 12 South. 86. Of course, this rule does not obtain and cannot be invoked by one who wrongfully and voluntarily puts himself in such a dangerous position. McCauley v. Tenn. Co., 93 Ala. 357, 9 South.

jury to determine whether or not the intestate was guilty of negligence in placing herself in the dangerous position from which she was trying to extricate herself by crossing over to the second track. Again, it was a question for the jury to determine whether or not she was guilty of negligence in attempting to cross the track in front of the approaching south-bound car, apart from the question of peril, even if she knew of its approach, as there was proof that she was signaling it to stop, and the jury could infer that she had reason to believe that it would stop before striking her or else slacken its speed so as to enable her to cross before being struck. There was also proof of a stopping or slackening sign post at this point as well as a custom for cars to stop or slacken their speed before passing each other.

[13] Charge 3 is in the abstract correct, and there would be no reversible error in giving same upon the next trial. As to whether or not its refusal could be justified so as to save a reversal of this case, we need not decide as it must be reversed for other reasons.

[14, 15] Charges 5, 6, and 17 each attempt to invoke contributory negligence of the intestate in and about crossing the track as against certain negligence therein hypothesized. The doctrine of comparative negligence does not exist in this state, and if the plaintiff's negligence, though slight, is the proximate cause of injury, he cannot recover for the simple antecedent negligence of the defendant, but the contributory negligence to preclude him must be specially pleaded, and it is only such negligence as is pleaded that can defeat a recovery, and not some proximate contributory negligence not specially pleaded. Sloss Co. v. Hutchinson, 144 Ala. 221, 40 South. 114; So. R. R. Co. v. Shelton, 136 Ala. 191, 34 South. 194; Ala. Mid. R. R. Co. v. Johnson, 123 Ala. 197, 26 South. 160; Birmingham v. City Stable Co., 119 Ala. 615, 24 South. 558, 72 Am. St. Rep. 955; A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84. The case of Birmingham R. R. Co. v. Bynum, 139 Ala. 389, 36 South. 736, seems to be opposed to this doctrine or the court evidently overlooked the fact that charge 5 in said case did not hypothesize the contributory negligence pleaded in reversing said case for the refusal of said charge 5, but it is unnecessary to expressly overrule said case at the present time for charges 5, 6, and 17 can be condemned for other reasons, even if we concede that they hypothesized the negligence as pleaded, to wit, in and about crossing the track. Sloss Co. v. Hutchinson, supra.

[16] Charge 5 if not otherwise bad, its refusal can be justified for being abstract as to the failure to keep a lookout as the motor

without dispute that he saw the intestate | ment of the city court is reversed, and the while in the center of the north track, and cause is remanded. before she came on his track.

[17] Nor did the intestate's negligence relieve him of sounding the gong after he saw her on the track, and in this respect the charge fails to take account of subsequent negligence.

[18] Charge 6 fails to take into account any subsequent negligence as mere negligence can include subsequent negligence, and the charge could have misled the jury to believe that the plaintiff could not recover for subsequent negligence if the intestate was guilty of negligence in attempting to cross the track. The criticism of the first part of charge 5 fully covers charge 17.

[19] There was no error in refusing charge 8, requested by the defendant. This charge, in effect, pretermits plaintiff's right to recover for subsequent negligence as set forth in count 5, if the intestate was guilty of the slightest negligence such as is pleaded, when as a matter of fact there was no plea setting up negligence on the part of the intestate subsequent to or concurrent with the negligence set forth in said count 5. In other words, the charge instructed a finding for the defendant except for a wanton or willful injury upon proof of defendant's pleas of contributory negligence, when none of them answered count 5, which charges subsequent negligence. The demurrers were sustained to these special pleas as to count 5, yet the charge requests a finding for the defendant upon proof of pleas, which did not go to said count, and notwithstanding the said count may have been proved. Nor do we wish to be understood as indorsing the form of the charge in referring the inspection of the pleas to the jury.

[20] Charges should hypothesize the facts relied upon as a defense, and not require the jury to examine and consider the pleas in order to determine what is meant. by said charges. A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84.

[21] Charge 9 is also faulty for seeking to defeat plaintiff's right to recover for subsequent negligence upon proof of the defendant's special pleas. True, the charge says you cannot award damages for any "mere" negligence on the part of defendant's servants, but the word "mere" cannot be construed as meaning only initial negligence, but is broad enough to mislead the jury to the belief that the plaintiff could not recover for any sort of negligence upon proof of defendant's special pleas.

Reversed and remanded.

DOWDELL, C. J., and SIMPSON, McCLELLAN, MAYFIELD, SAYRE, and SOMERVILLE, JJ., concur.

(174 Ala. 145)

MCINTOSH v. WINDHAM.

(Supreme Court of Alabama. Nov. 30, 1911.) 1. EJECTMENT (§ 110*)-INSTRUCTIONS-NoTICE OF DEED.

In ejectment, an instruction that if a former owner executed a deed to defendant, delivering it to a third person for delivery to defendant, defendant must recover, was properly refused as not requiring that plaintiff have notice of the deed; the evidence being conflicting as to whether defendant was in possession when plaintiff received his deed.

[Ed. Note.-For other cases, see Ejectment, Dec. Dig. § 110.*]

2. CHAMPERTY AND MAINTENANCE (§ 7*)—

GRANTS OF LANDS HELD ADVERSELY.

Under Code 1907, § 3839, a conveyance of land which, at the time the deed is executed, the grantor, exercising acts of ownership and is in possession of one holding adversely to claiming to be in rightful possession thereof, though having no color of title, is void as to such possessor and will not support ejectment by the grantee.

[Ed. Note.-For other cases, see Champerty and Maintenance, Cent. Dig. §§ 54-110; Dec. Dig. § 7.*]

3. EJECTMENT (

BILITY.

90*)-EVIDENCE-ADMISSI

In ejectment, plaintiff was properly persold timber for a certain amount and sent promitted to show by defendant that defendant ceeds to one H. to corroborate testimony of H. that the timber was sold for him under an agreement testified to by him.

[Ed. Note. For other cases, see Ejectment, Dec. Dig. § 90.*]

4. EJECTMENT (§ 64*) - COMPLAINT-SUFFICIENCY-DESCRIPTION OF LAND.

A complaint in ejectment sufficiently described the land to warrant recovery, where it gave the length and width of the tract, located it as beginning at a definite corner, and further identified it as land being cultivated by a specified person.

Cent. Dig. §§ 158-164; Dec. Dig. § 64.*] [Ed. Note.-For other cases, see Ejectment,

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Ejectment by H. A. Windham against Dan McIntosh. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The following charges were requested by defendant and refused. (2) “If the jury are reasonably satisfied from all the evidence that Holloway executed a deed to the land in controversy to Dan McIntosh, and delivered the deed to C. W. Baston for him to deliver to McIntosh, and that was the agreement of the parties, then the verdict must be for the defendant." (3) "I charge you, gentlemen of the jury, that a conveyance of land For the error above suggested, the judg- which at the time of execution of the deed

[22] The plaintiff amended his complaint by striking out count 9, as well as others, before the case was submitted to the jury, and the court did not err in refusing defendant's requested charge 11.

is in possession of one holding adversely to | ly, or as tenant of his brother, who states the grantor, and exercising acts of owner- that he never claimed to own the land, but ship, and claiming to be in rightful posses- only told his brother he could occupy it. sion, though having no color of title, is void as to the persons holding adversely, and will not support an action of ejectment by the grantee against such adverse holding."

The third assignment of error is as follows: "In overruling defendant's objection to the following question propounded by plaintiff to defendant: 'Is it not a fact that you sold the timber for $52.50?" Assignment 4: "In not excluding the answer of the witness as follows: 'No, sir; I sold the timber for $50, and sent $40 to Holloway and kept $10.'"

Charge 1, requested by the defendant and refused, is as follows: General affirmative charge to find for the defendant.

H. L. Martin, for appellant. C. W. Simmons, for appellee.

SIMPSON, J. This is a statutory action of ejectment, by the appellee against the appellant. The plaintiff proved a chain of conveyances from the government down to himself, starting with a patent from the United States to Joseph B. Holloway, dated June 10, 1892, a deed from said Holloway to Snellgrove & Law, dated January 8, 1906, etc.

The defendant introduced evidence for the purpose of showing that, in the spring of 1904, said J. B. Holloway signed and acknowledged a deed, conveying the land in question to Dan McIntosh, which deed was never delivered to said McIntosh, but was delivered to one Baston, to be delivered to said McIntosh, and subsequently was returned to Holloway, who stated that he would deliver it to McIntosh.

The claim of the defendant is that the delivery to Baston was in accordance with the instructions of McIntosh, and that the delivery to Baston was really a delivery to McIntosh, although the deed never actually came into the hands of McIntosh.

The evidence is in conflict as to whether there were any numbers of land in the deed which was acknowledged before, and left with Baston, and J. B. Holloway, the grantor, testified that it was not intended to be delivered as a deed at all, but was signed only to enable Dan McIntosh to sell some timber for him, and that the $40 subsequently paid to him was merely for the timber which had been sold for him, although he told Dan McIntosh that, if he wanted the land for $100, he could have it, and that said McIntosh afterwards told him that he did not wish to take the land at all.

There is a conflict in the testimony as to whether any one was in possession of the land at the time the deed was made to the plaintiff, also as to whether, if McIntosh was in possession, he was holding it adverse

[1] There was no error in the refusal to give charge 2, requested by the defendant. It does not hypothesize that the plaintiff had any notice of the deed which purports to have been made to Dan McIntosh, and, as the evidence is in conflict as to whether he was in possession at the time the deed was made to the plaintiff, it cannot be said to be a matter of law that the plaintiff had notice by possession.

[2] The court erred in refusing to give charge 3. Under the interpretation by this court, of section 3839, Code of 1907 (Grant v. Nations, 55 South. 310), said charge states the law, as applied to the facts of this case; the conveyance in question having been made before the enactment of said section.

[3] Referring to the third and fourth assignments of error, there was no error in overruling the objection to the question and the motion to exclude the answer as to the sale of the timber and the disposition of the proceeds, as it tended to corroborate the testimony of Joe Holloway that the timber was sold for him, under the agreement testified to by him.

[4] There was no error in refusing to give charge 1, requested by the defendant. The description in the complaint is sufficiently definite to warrant a recovery. It gives the length and the width of the strip, locates it as beginning at the S. E. corner of said N. W. 4 of N. W. 4, and further identifies it as the strip "now being cultivated by Walter Clemons.”

For the error noted, the judgment of the court is reversed, and the cause remanded.

Reversed and remanded. All the Justices concur, save DOWDELL, C. J., not sitting.

(174 Ala. 259)

KELTON, Judge, et al. v. TAVEL. (Supreme Court of Alabama. June 29, 1911. Rehearing Denied Dec. 21, 1911.) PROHIBITION (§ 3*)-GROUNDS FOR RELIEFREMEDY IN EQUITY.

exceeding by a court of its jurisdiction, and Prohibition, being a remedy only for the that only when the fact of its doing so is matter of law, determinable on inspection of the record, will not lie to the probate court to prevent its further entertainment of proceedright of way through a dwelling; the court ings by a railroad corporation to condemn a having jurisdiction of condemnation proceedings, and a corporation regularly organized as such property having proceeded regularly, and a railroad company with power to condemn the remedy for any special equity, as that the organization of the railroad was a fraudulent attempt, under forms of law, to appropriate the dwelling to a really private use, being in equity.

[Ed. Note.-For other cases, see Prohibition, Cent. Dig. §§ 4-19; Dec. Dig. § 3.*]

Appeal from Circuit Court, Blount Coun- | suspended if the money be paid into court ty; E. C. Crow, Judge.

Prohibition by Mrs. Zanie Tavel against John F. Kelton, Judge, and others. From an order to show cause, defendant Judge appeals. Reversed and rendered.

and a bond given as required, petitioner's dwelling house would be destroyed before she could prosecute the appeal.

"A prohibition is a remedy against an encroachment of jurisdiction, issued only from

A. Leo Oberdorfer, for appellant. A. La- a superior court, is granted on the suggestady, for appellee.

SIMPSON, J. This appeal is from an order of the judge of the circuit court for Jefferson county for a rule nisi to the judge of the probate court for Blount county, to show cause why a writ of prohibition should not be issued, prohibiting further prosecution of certain condemnation proceedings before said probate court. L. K. Moss, C. L. Moss, and D. H. Brown, incorporators of the Warrior Mineral Railroad Company, and John H. Donoho, W. F. Fendley, and Robert Fowler, commissioners appointed by said probate judge, and said Warrior Mineral Railroad Company, are also made parties

and included in said writ.

The petition alleges the incorporation of said Warrior Mineral Railroad Company, "setting out in their said alleged certificate of incorporation that they proposed to construct and operate a railroad for the carriage of passengers and freight between Linton Junction, and a point on the Louisville & Nashville Railroad, near the line of Jefferson county, Ala., by the nearest, most satisfactory, practicable, and feasible route, through the S. W. 4 of the S. E. 4 of section 5, in township 14 S., range 2 W., to a point in the S. E. 4 of the S. E. 4 of section 4, in township 14 S., of range 2 W., and to acquire rolling stock and other personal property, incident to the operation of a railroad, and arrogating to themselves thereby the right to condemn lands for purposes of rights of way." The petition cites certain defects in the certificate of incorporation, such as that the termini of the railroad are not stated; that, while the names of certain parties are given as the officers chosen for the first year, yet it is not shown what particular office each holds, etc.

The gravamen of the petition is that, although said corporation has been formally organized as a railroad corporation, under the statutes of Alabama, yet that it was not organized in good faith to carry passengers and freight, but merely as an adjunct to a certain mining corporation, owned and controlled by the same persons, for the purpose of evading the statutes of Alabama, under which no corporation except a railroad corporation can condemn a right of way through the curtilage of a dwelling house, said line being projected so as to run through the dwelling house of petitioner, and that, although section 3875 of the Code of 1907 provides for an appeal from an order of condemnation, yet, as section 3876 provides

* nor

tion that the court to which it is directed has not the legal cognizance of the cause, and it is directed to the judge of the inferior court, as well as to the parties in the cause"; while an injunction "neither assumes any superiority over the court * denies its jurisdiction, but is granted on the sole ground that from certain equitable circumstances, of which the court that issues it has cognizance, it is against conscience for the party to proceed in the cause." Spelling on Extraordinary Relief, p. 50, § 40; 2 Spelling on Extraordinary Relief, p. 1395, § 1716.

1

"The writ of prohibition lies only when the inferior court proposes to exceed its lawful jurisdiction, as to the person or subjectmatter, or in the enforcement of its rulings in a manner or by a means not intrusted to its judgment or discretion." "Injunction never questions the jurisdiction of the court, nor is addressed to the court; it only lies against the parties. Prohibition, on the contrary, takes no notice of the parties, ignoring for the most part any interest they may have in the matter forming the subject-matter of the grievance, and goes direct against the court." 2 Spelling on Extraordinary Relief, p. 1396, §§ 1716–1718.

The writ cannot issue for every illegality in the proceeding of an inferior court. "But there is a distinction in this connection between the defect of jurisdiction arising in pais, and such as are matters of law, and hence determinable upon inspection of the record. The general rule is that the writ of prohibition will not issue to restrain an inferior judge from doing an act when he has prima facie jurisdiction." 2 Spelling, Extra. Rem. p. 1404, § 1724.

Accordingly, where the Southern Railway Company sought to condemn the tracks of a street railway, and the point was made that the statutes do not authorize such jurisdiction, it was held that, as the court had jurisdiction "of proceedings for the condemnation of property to public use, it therefore had jurisdiction of the subject-matter," and the writ was refused. State ex rel. Union Depot Railway Co. v. Southern Railway Co., 100 Mo. 59, 61, 13 S. W. 398.

"The sounder doctrine, and that sustained by the great preponderance of authority, is to the effect that prohibition only lies where the court either lacks jurisdiction of the subject-matter, or, having jurisdiction, exceeds it in some incidental matter, or in rendering judgment, and no appeal or writ of error or other remedy is available at all, or

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