that required greater care on his part than at other water ways. Plea 11 invokes as a defense the assumption of risk. It is alleged "that the injury complained of occurred immediately after a very heavy and excessive fall of rain on the line of defendant's railway; that plaintiff's intestate knew this fact, and also knew the condition of defendant's roadway at said. place, and with such knowledge voluntarily undertook to operate said engine and train at said time and place, and thereby assumed the risk of the injury which resulted in his death." Whether deceased knew of the condition of defendant's roadway at said place, as those conditions existed at the time he attempted to cross, the plea does not aver. Construing its averment most strongly against the pleader, he possessed only such knowledge of its conditions as he had previously acquired. It does not appear what "condition" deceased knew, and there is an evident failure to allege that he knew of any conditions existing at the time that made it dangerous to cross with his engine and train. Before it could be said he assumed the risk, it must appear either that he was properly warned of the danger, or that it was open and patent: Louisville etc. R. R. Co. v. Stutts, 105 Ala. 368, 53 Am. St. Rep. 127, 17 South. 29; Louisville etc. R. R. Co. v. Baker, 106 Ala. 624, 17 South. 452; Alabama etc. R. R. Co. v. Brooks, 135 Ala. 401, 33 South. 181, and authorities there cited. Plea 21 alleges that "plaintiff's intestate was guilty of contributory negligence, in that before he had reached the place where he was injured he was notified by the defendant that there had been very heavy rains at the place where the injury occurred, and cautioned him to look out for high water at said place; that notwithstanding said notification and caution which was given in ample time for said intestate to have acted thereon, and in disregard thereof, he, plaintiff's intestate, with a full knowledge of the location where said injury occurred, negligently failed to approach said place with caution, but negligently and carelessly ran his engine and train 155 over the same at a high rate of speed," etc. It will be observed it is not alleged that plaintiff's intestate failed "to look out for high water at said place," or that, if he had done so, he could have seen the conditions that made it obviously dangerous to attempt to cross. The averment that he had “full knowledge of the location" is by no means the equivalent of an allegation that he knew the culvert had been washed out or the dangerous condition caused by the stoppage of the water, or that he could have discovered the danger by the exercise of due care, and the failure to make these necessary averments is not remedied by the statement that deceased "negligently and recklessly ran his engine and train over the same at a high rate of speed"; a mere conclusion of the pleader, which, as we have said above, is an insufficient averment in pleas of this character. The twenty-second plea sets up contributory negligence, and is substantially the same as the seventh and eighth. It avers the same notification that heavy rains had fallen along the line of the defendant's road, and the same caution to look out for high water at all low places and waterways. It is alleged that notwithstanding said notification and caution, "said intestate carelessly and negligently ran his said engine and train at a rapid rate of speed without ascertaining the condition of the road ahead of him, which he could have done by the use of the proper care and diligence, and which it was his duty to do before attempting to pass over the place where the injury occurred. Wherefore," etc. What we have said in respect of the seventh and eighth pleas is applicable to this one. Furthermore, it is not alleged that he failed to keep a lookout, or that he could have maintained such a lookout consistently with his other and primary duties as would have enabled him to ascertain the conditions then existing; and finally, the breach of duty. is alleged by way of conclusion merely. The defense of the assumption of the risk was invoked by the twenty-third plea, which alleged that "the injury occurred immediately after a very heavy and excessive fall of rain on the line of defendant's railway, and that plaintiff's intestate was notified in ample time by defendant of this fact, and further, that plaintiff's intestate was cautioned 156 to look out for high water at said place; and defendant avers that it was the duty of plaintiff's intestate after receiving said notice not to have crossed said place without ascertaining that it was safe and notwithstanding this notice and duty, and with such knowledge on his part, voluntarily undertook to run said engine and train of cars at a rapid rate of speed over said place, and thereby assumed the risk of injury which resulted in his death." This plea, it is evident, is open to the objections urged to all the others of the same character. There are no facts stated showing that the danger was open to ordinary observation and known to deceased-necessary allegations before deceased could be said to have assumed the risk, or even that he failed to keep a lookout. As a plea of the assumption of risk, it is nowhere averred that the danger was obvious. There is no distinct averment in either of the pleas that plaintiff's intestate knew of the dangerous conditions existing at the culvert when he attempted to pass, or that they were of so obvious a character that he could, consistently with the performance of his duties, have ascertained these conditions. The demurrer to plea 10 was properly sustained. The plea alleges that the injury complained of was the result of a mere accident incident to the work in which plaintiff's intestate was engaged. It is sufficient to say that, if the facts were true as stated, the defendant was not guilty of the negligence charged in the complaint and denied by the plea of the general issue: Going v. Steel & Wire Co., 141 Ala. 537, 37 South. 784; Milligan v. Pollard, 112 Ala. 465, 20 South. 620. The averments of plea 12 are substantially the same as in pleas 7 and 8, with the added statement that as the result of the negligence of plaintiff's intestate, the defendant sustained damage to its cars, etc., in a sum stated, which the plaintiff offers to set off against the demands sued for. As we have already shown, the averments of the plea do not sustain the charge of contributory negligence; but if it were otherwise, the damages alleged to have been sustained could not be set off in an action of this character, where it is sought to recover damages for injuries 157 alleged to have resulted from defendant's negligence: Code, sec. 27. In each of the cases cited to the proposition by appellant, the action was in assumpsit. Plea "A" was interposed to the seventh count of the complaint, which alleges the negligent failure of the defendant to give warning to plaintiff's intestate of the dangerous conditions existing at the place where the injury occurred. The plea alleges that defendant's servants did not know of those conditions in time to give such warning. Whether the defendant had made any efforts to inform itself does not appear, and this failure to allege such effort was one of the grounds of demurrer interposed: Robinson Min. Co. v. Tolbert, 132 Ala. 462, 31 South. 519. Moreover, if the defendant was guilty of no negligence in failing to warn plaintiff's intestate, that fact could have been shown on issue joined to the seventh count of the complaint, which alleged such negligent failure. What has been said disposes of the rulings upon the pleadings. The remaining assignments of error are predicated upon rulings which must be shown by a bill of exceptions. The paper in the record, purporting to be a bill of exceptions, must be disregarded, because the order of April 29, 1903, extending the time for its signing, was made by the court, and not by the judge: Western Railway of Alabama v. Arnett, 137 Ala. 414, 34 South. 997; Scott v. State, 141 Ala. 39, 37 South. 366. Affirmed. McClellan, C. J., Simpson and Anderson, JJ., concurring. A Railway Company owes to its employés operating trains the duty to exercise reasonable care and diligence to provide and maintain a safe track on which to run its trains; and this duty it cannot delegate 80 as to escape responsibility for its nonperformance: Rogers v. Cleveland Ry. Co., 211 Ill. 126, 103 Am. St. Rep. 185, and cases cited in the cross-reference note thereto. CENTRAL FOUNDRY COMPANY v. BENNETT. NEGLIGENCE CAUSING DEATH-Evidence of Earning Capacity. In an action to recover for loss of life caused by negligence it may be shown that the deceased was a bright, economical and industrious boy, learning his trade quickly, as a circumstance to go to the jury in fixing his present earning capacity and future expectancy. (p. 33.) of NEGLIGENCE CAUSING DEATH-Evidence-Wages Skilled Mechanics.-In an action to recover for loss of life caused by negligence, evidence to show what wages a skilled mechanic earned per day is not admissible when it is shown that the deceased had been learning the trade only about seven weeks, while it required a three years' apprenticeship to become a skilled mechanic. (p. 34.) Action by the administrator of T. Bennett, deceased, who at the time of his death was employed by the Central Foundry Company and who was then about sixteen and one-half years of age. The boy Bennett was killed while assisting another employé to adjust a belt on a rapidly revolving pulley, under orders from the superintendent of the foundry. There was a defect in the belt which caused it to break and strike Bennett, killing him instantly. 186 ANDERSON, J. The right given a personal representative to sue for injuries resulting in the death of his intestate, as provided by section 1751 of the Code of 1896, is intended as a remedy for compensation to those having a pecuniary interest in the person killed, and the amount of recovery is limited to the value of such interest: 3 Wood's Railway Law, p. 1536, sec. 414. "That the jury may have proper data from which a pecuniary interest may be fixed, it is proper to admit evidence of the age, probable duration of life, habits of industry, means, business, earnings, health, skill of deceased, and reasonable future expectations; and perhaps there are other facts which should exert a just influence in determining the pecuniary damage sustained": Louisville etc. R. R. Co. v. Orr, 91 Ala. 548, 8 South. 360. While under the rule laid down a jury would not be rigidly. restricted in assessing damages to the earnings of intestate at the time of his death, and where intestate, as in this case, is shown to have been bright, economical and industrious, the jury might consider the fact that these qualities, with age and experience, would bring increased earn- . ing capacity. We do not think, however, that it was permissible for the plaintiff to have proven the earning 187 pacity of a man proficient in a trade, when the evidence shows the intestate was wearing the swaddling clothes of apprenticeship. Such evidence was speculative and remote, and the defendant's objection thereto should have been sustained. He had served but six or seven weeks at this trade, and the undisputed evidence was that it required a service. of three years to become a skilled machinist. ca In the case of Brown v. Chicago etc. Ry. Co., 64 Iowa, 652, 21 N. W. 193, the court says: "Plaintiff was permitted, against defendant's objection, to prove that firemen, employed on defendant's engines, when they had sufficient exAm. St. Rep., Vol. 113-3 |