perience, and had acquired the requisite skill, were sometimes employed as engineers, and when so employed they were paid an increased compensation for their services. This evidence was admitted for the purpose of showing what the earnings of the intestate would probably have been if he had lived the natural period of his life. In our opinion it was not competent. In determining the damages which the estate of a decedent will sustain in consequence of his death, and such as it is reasonably certain would have ocdeath, it is proper to consider his calling at the time of his death, his ability, the amount of his earnings, and the like circumstances; and the estimate should be made with reference to such facts as actually existed at the time of his curred in the future, but for his death. It is not claimed that he possessed the skill requisite for the employment, and whether he ever would have acquired that skill was uncertain. The evidence should therefore have been excluded." In Bonnet v. Galveston etc. Ry., 89 Tex. 72, 33 S. W. 334, the court says: "Although it has been testified that the deceased, just before his death, was preparing himself to become a machinist and an engineer, the court did not err in excluding the evidence as to the wages that machinists and engineers ordinarily receive for their services. The probability of his becoming an engineer and machinist was too remote, contingent and speculative to throw any light on his probable future earnings. It was calculated to mislead, rather than aid, the jury in determining the question of damages." For other authorities on this subject, see Colorado 188 Coal etc. Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 255; Chase v. Burlington etc. Ry., 76 Iowa, 675, 39 N. W. 196; Richmond etc. R. R. v. Elliott, 149 U. S. 267, 13 Sup. Ct. Rep. 837, 37 L. ed. 728.

Since all of the assignments of error insisted upon are predicated on the admission of this evidence, we need not consider them separately.

The judgment of the city court is reversed and the cause remanded.

Haralson, Dowdell and Denson, JJ., concur.

The Elements and Measure of Damages in actions for causing the death of a person are discussed in the note to Louisville etc. Ry. Co. v. Goodykoontz, 12 Am. St. Rep. 375-383; and in the recent cases of St. Louis etc. Ry. Co. v. Haist, 71 Ark. 258, 100 Am. St. Rep. 65; Smith v. Middleton, 112 Ky. 588, 99 Am. St. Rep. 308. In determining what

4

damages are sustained by a parent from the death of a minor child, it has been held that regard may be had to the calling of the father, since experience teaches that children frequently follow the same general class of business as that of their parents: Fox v. Oakland etc. St. By., 118 Cal. 55, 62 Am. St. Rep. 216.

TENNESSEE COAL, IRON AND RAILROAD COMPANY v. BRIDGES.

[144 Ala. 229, 39 South. 902.]

MASTER AND SERVANT Sufficiency of Complaint.-A complaint for injury to a servant caused by his being struck by defendant's railroad engine, failing to charge that the person whose negligence is complained of was in charge of such engine, does not state a good cause of action. (pp. 36, 37.)

MASTER AND SERVANT-Sufficiency of Complaint.-A complaint alleging that an injury to a servant resulted from the wanton, reckless or intentional act of a fellow-servant, but not alleging that the master was guilty of negligence in the selection of such servant, in the orders given him, or otherwise, does not state a good cause of action. (p. 37.)

MASTER AND SERVANT-Injury to Fellow-servant.—Although a master is liable for the wanton, reckless, willful, or intentional acts of his employé, when acting within the scope of his employment, yet when the injury is to a fellow-servant, the master is not liable, unless the case is brought within statutory provisions, or if the common-law liability is relied on, negligence must be alleged and shown in the master himself. (p. 37.)

MASTER AND SERVANT-Injury to Fellow-servant.—A master is not liable to those in his employ for injuries resulting from the negligence, carelessness, or misconduct of a fellow-servant. 38.)

(p.

TRIAL-Instructions.-If a complaint contains several counts, it is proper to refuse a charge instructing the jury, if it believes the evidence, to find for the defendant on one of the counts. (p. 38.)

NEGLIGENCE, CONTRIBUTORY-Defense.-To sustain the defense of contributory negligence, the conduct of the plaintiff must be negligent, and must also contribute proximately to the injury. 38.)

(p.

NEGLIGENCE CONTRIBUTORY—Willful Injury.-If there is evidence tending to sustain counts of wanton, reckless, and intentional misconduct of another resulting in injury to the plaintiff, it is proper to refuse to instruct the jury that if there was a safe way for plaintiff to have discharged his duties, and an obviously dangerous way, and he chose such dangerous way, he cannot recover. (p. 38.) NEGLIGENCE-Assumption of Risk.-If the evidence shows that injury to a servant was the result of willful, wanton and reckless conduct of the defendant's engineer, a plea that plaintiff assumed the risk is no defense. (p. 38.)

Action for damages for personal injury to an employé. The first count in the complaint alleged the negligence of the defendant, through its servant, an engineer in charge of defendant's engine, by negligently, wantonly and recklessly running his engine against plaintiff and knocking him off a trestle. Such engineer was alleged to be a fellow-servant with plaintiff. The following charges were requested by the defendant and refused by the court:

"3. Gentlemen of the jury, there is no evidence of wanton, willful or intentional injury on the part of the defendant's servant, Street, toward plaintiff; and if you believe the evidence in this case you must find for the defendant on the first and fifth counts of the complaint. . . . . 5. The court charges the jury that there is no evidence of willful, wanton or intentional injury on the part of Street; and if they believe the evidence they must find for the defendant on the first and fifth counts. . . . . 7. If the jury believe from the evidence that plaintiff's conduct proximately contributed to his own injury, then he cannot recover in this case, and your verdict must be for the defendant. . . . . 9. If the jury believe from the evidence that the plaintiff could have performed his duties in unloading the car without being upon the running board of the trestle, where the car to be unloaded was being placed, and that he could have remained in a place of safety until the car was placed, then he contributed by his own negligence proximately to his injury, and he cannot recover. . . . . 12. If the jury believe from the evidence that there was a safe way and an obviously dangerous way for the plaintiff to discharge the duties of his employment, and the plaintiff selected the obviously dangerous way of performing said duties, and he was thereby injured, I charge you that the plaintiff was guilty of contributory negligence in selecting the dangerous way to perform his duties, and cannot recover in this case, and your verdict should be for the defendant."

Judgment for plaintiff and defendant appealed.

Tillman, Grub, Bradley & Morrow, for the appellant.

Kirk, Carmichael & Rather, for the appellee.

236 SIMPSON, J. The first count of the complaint is not a count under the statute, because it does not allege that the party whose negligence is complained of was in

charge of an engine on a railroad: Code 1896, sec. 1749, subsec. 5; Sloss-Sheffield Steel & Iron Co. v. Mobley, 139 Ala. 425, 36 South. 181. As a complaint at common law said count alleges that the injury resulted from the wanton, reckless or intentional act of a fellow-servant 237 of plaintiff, but does not allege or show that the master was guilty of negligence in the selection of said servant, or in the orders given him, or otherwise. Consequently, the demurrer to this count should have been sustained: 2 Labatt on Master and Servant, p. 2355, sec. 855a; Lawler v. Androscoggin R. R. Co., 62 Me. 463, 16 Am. Rep. 492. While it is true that under our decisions a master is liable for the wanton, reckless, willful or intentional acts of his employé, when acting within the scope of his employment, yet that does not abrogate the principle that when the injury is to a fellow-servant the master is not liable, unless the case is brought within the statute or, if the common-law liability is relied on, negligence be alleged and shown in the master himself: 1 Labatt on Master and Servant, pp. 391, 392, sec. 177, and note. Southern Ry. Co. v. Wildman, 119 Ala. 565, 24 South. 764, Gilliam's Case, 70 Ala. 268, Highland Ave. R. Co. v. Robinson, 125 Ala. 483, 28 South. 28, and City Delivery Co. v. Henry, 139 Ala. 162, 34 South. 389, were all cases of injury to a passenger or a stranger; and the case of Southern Ry. Co. v. Moore, 128 Ala. 434, 29 South. 659, merely decides that, in a case within the statute, the fact that the injury was from the willful, wanton, reckless or intentional wrong of the fellow-servant does not prevent a recovery, the same as if it was negligence, strictly speaking. The general principle is that the "master is not liable to those in his employ for injuries resulting from the negligence, carelessness, or misconduct of a fellow-servant": Laning v. New York Cent. R. Co., 49 N. Y. 521, 10 Am. Rep. 417.

The demurrer to the fourth count of the complaint was improperly overruled. Said count alleges that defendant was operating a furnace in Colbert county, and was operating a locomotive along a certain railroad track, but it does not allege that the engine or car was on any railroad track: See Mobley's Case, 139 Ala. 425, 36 South. 181. Notwithstanding acts of 1903, page 182, requiring these actions to be brought in the county where the injury occurred, or in the county where plaintiff resides, it is not neces

sary to allege these matters in the complaint, as it is a matter of defense to be pleaded. The demurrer to the fifth count should also have been sustained: See Mobley's 238 Case, 139 Ala. 425, 36 South. 181, and others referred to. The court finds in the record no demurrers to the sixth count of the complaint.

As there was a conflict in the evidence on the subject of giving or obeying signals to stop, and of the safety or unsafety of the position on the running-board, and on the question whether or not the engineer ran the car further than the signals authorized, also as to whether plaintiff was knocked off by the car or by the body of Gay, the court properly refused to give the general charge for defendant. Charges 3 and 5, requested by the defendant, were properly refused. Where the complaint contains several counts, it is proper to refuse a charge instructing the jury, if they believe the evidence, to find for the defendant on one of the counts: United States Fidelity etc. Co. v. Habil, 138 Ala. 348, 35 South. 344; Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 South. 40.

The court did not err in refusing to give charge 7, requested by defendant. In order to sustain the defense of contributory negligence, the conduct of the plaintiff must be negligent, and must also contribute proximately. This charge does not refer it to the jury to determine whether plaintiff was negligent. A man's conduct may proximately contribute to his injury, yet he may have been free from any negligence. Charge 7 was properly refused. The court properly refused to give charge 12, requested by the defendant, as there were counts in the complaint alleging willful, wanton and reckless conduct on the part of the engineer, and the court is not prepared to say that there was no evidence from which the jury might find that said allegations were sustained. Charge 9 was properly refused, because it did not hypothesize that the running-board was a place obviously dangerous.

The demurrers to pleas 2 and 3 were properly sustained, as said pleas do not sufficiently set forth any defense.

For the errors pointed out the judgment of the court is reversed and the cause remanded.

McClellan, C. J., and Tyson and Anderson, JJ., concur.