v. New York etc. Ry. Co., 88 N. Y. 481; Couch v. Coal Co., 46 Iowa, 17; Huffman v. Chicago etc. Ry. Co., 78 Mo. 50. It is also a rule of the common law still in force that if the servant knew of the incompetency of the offending servant as well as the master, or had equal knowledge, and, notwithstanding such knowledge, continued in the employment without objection, he waives the negligence of the master in this respect: Laning v. New York etc. Ry. Co., 49 N. Y. 521, 10 Am. Rep. 417; Wright v. New York etc. Ry. Co., 25 N. Y. 562; Mad River etc. R. R. v. Barber, 5 Ohio St. 541, 67 Am. Dec. 312.

The grounds of the demurrer to the effect that the complaint fails to aver that the fellow-servant, Lewis, 309 had any superintendence intrusted to him, or that it fails to aver any of the essentials to a recovery under the employers' liability act (section 1749 of the Code of 1896), were without merit. The complaint avers a common-law liability for injuries due to the negligence of Archibald Lewis, resulting from the incompetency of Lewis, and that defendant knew of his incompetency and negligently retained him. If the plaintiff knew of the incompetency of Lewis before going into the shaft that would be defensive matter, and it is not necessary for the complaint to negative the fact. Nor was it necessary for the complainant, in charging negligence, to state the quo modo: Mary Lee etc. Ry. Co. v. Chambliss, 97 Ala. 171, 11 South. 897; Georgia P. Ry. Co. v. Davis, 92 Ala. 300, 25 Am. St. Rep. 47, 9 South. 252; Kansas City etc. R. R. Co. v. Sanders, 98 Ala. 293, 13 South. 57; Conrad v. Gray, 109 Ala. 130, 19 South. 398. The demurrers to the first count were properly overruled. The demurrers to the third count are the same as those filed to the first, and simply seek to "thresh over old straw," and were properly overruled.

The ninth count charges the defendant with negligence for the failure to exercise reasonable diligence to inform itself of the unfitness of the said Lewis, and it was not necessary to lay the failure to some one intrusted with the management and superintendence. The demurrers to the count were properly overruled. The demurrers to the eleventh count have been treated under the first and ninth counts, and were properly overruled.

The demurrers to the twelfth and thirteenth counts as amended were properly overruled. We do not understand

the amended counts to be a departure from the original cause of action.

The demurrers to pleas 6, 8, and 9 were properly sustained. The fact that the plaintiff stated that he had only a small amount of work to do, and he would be through with it in a few minutes, did not justify said Lewis in causing said eleveator to descend in the shaft, within an hour, without having first ascertained whether the plaintiff was in said shaft, as the plea does not aver that the statement was made to Lewis or anyone else authorized to act upon the statement: Williamson 310 v. Jones, 43 W. Va. 562, 64

Am. St. Rep. 891, 27 S. E. 411, 38 L. R. A. 694.

The seventh plea was subject to the demurrer interposed. The fact that the plaintiff told the operator that the descent of the elevator at the time Pelzer wished to go up to the first floor could be made was no license to the operator to continue to come down or to go to the basement.

Pleas 10 and 11 set up no defense to the action, and the demurrers were properly sustained. The complaint charges the elevator boy, Lewis, with being incompetent because of carelessness and inattention, and the fact that he disobeyed the defendant's orders is but an averment of his unfitness, and does not relieve the defendant from liability, as the charge against the defendant is for keeping an incompetent servant. If he disobeyed his master's instructions, that was but an act of inattention to his duties. The authority cited and relied upon by counsel for appellant to sustain the position that the master is not liable for injuries resulting from disobedience of his orders (Laughran v. Brewer, 113 Ala. 509, 21 South. 415) has no application to this case. In that case the very gist of the action was the act or omission, made or done in obedience to the rules of the master and under the employer's liability act. The case at bar is under the common-law liability for keeping an incompetent servant, and disobedience to orders is but an act of incompetency.

It is insisted, however, that no sufficient ground of demurrer was interposed to the tenth plea. The grounds interposed to the fourth plea were set up to the tenth, and we think the fourth ground thereof is sufficient to test the sufficiency of the plea. It is harmless error to improperly sustain a demurrer to certain pleas, where the defendant has the benefit of all the matters set up therein under pleas

remaining: Taylor v. Corley, 113 Ala. 580, 21 South. 404; Smith v. Heineman, 118 Ala. 195, 72 Am. St. Rep. 150, 24 South. 364; Booth v. Dexter S. F. E. Co., 118 Ala. 369, 24 South. 405; Farley Nat. Bank v. Henderson, 118 Ala. 441, 24 South. 428. The defendant got the full benefit of plea 12 under the general issue.

311 Pleas 13 and 14 simply aver that the plaintiff knew of the said Lewis' ability to operate the elevator, but does not charge him with knowledge of the incompetency of the said Lewis, due to his carelessness and inattention, and the demurrers were properly sustained.

The objection to the question to the witness Hastings, "Was Lewis a wide-awake, attentive boy during the time he was engaged in his duties?" was certainly not based upon a good ground, "that it called for an opinion and the witness was not an expert." We do not accept it as calling for an opinion; but, if it did, it related to a subject that did not require expert evidence as to an opinion. It requires no expert to tell how a person looks-if sleepy or awake, if mad or in a good humor, if excited or quiet and composed. Nor did the court err in excluding the answer. The answer, if an opinion, was but the mere shorthand rendering of the facts, and could be given, subject to cross-examination as to the facts on which it is based: South & North Alabama R. R. v. McLendon, 63 Ala. 266; Raisler v. Springer, 38 Ala. 703, 82 Am. Dec. 736; Avary v. Searcy, 50 Ala. 54; Wharton on Evidence, sec. 510. Nor did the trial court err in reference to the similar question to and answer of the witness Cody.

The motion to exclude the testimony of Murphy that he had been informed of the conduct of Lewis was properly overruled. Murphy had testified that he had charge of the building; that Baldwin, the president, and the man who hired Lewis, told him "to look after the operation of the elevator and to take charge of Archie Lewis." It is not material that he had no authority to discharge Lewis. He had authority to look after him, and it was his duty to report his misconduct to his superior.

Charges 1 to 6, inclusive, were properly refused. The evidence made it clearly a question for the jury, and the defendant was not entitled to the general affirmative charge under any of the counts.

Charge 7 was properly refused. Even if the slipping of the brake caused the injury, the jury could have found that the slipping of the brake was caused by the inattention or carelessness of the elevator boy, Lewis.

Charge 11 was properly refused. If Murphy told Bryant to go to the basement in the elevator and take the rug, 312 and Bryant so informed Lewis, and Lewis took the elevator down as a result of said instruction, the jury could have inferred that Lewis was negligent in making the descent without first ascertaining if plaintiff was still in the shaft.

Charge 8 was properly refused. Even if plaintiff did tell Lewis to bring the elevator down, it was no license to him to continue to do so. Besides, the plaintiff testified that

he told him not to come after that one time.

Charge 10 was properly refused. If not otherwise bad, it is hypothesized on the running of the elevator to the first floor, when the evidence shows that the injury was caused by running it below the first floor and upon the plaintiff while in the basement.

Charge 9 was properly refused. The injury may have been caused by Murphy telling Bryant to take the carpet. to the basement on the elevator, yet the jury might infer that Lewis was negligent in going down with the elevator. It is true the charge asks a finding for the defendant if "the injury was caused any other way than by the neglect of Lewis." But these are alternative and disjunctive postulations, all of which ignore the negligence of Lewis, except the last one.

There was no error in rendering the verdict for three thousand five hundred dollars. There is nothing in the contention that it was in excess of the sum claimed in counts 12 and 13. Said counts were for fifteen thousand dollars, and were amended after demurrer was sustained by setting out special damages, and which did not contain in the estimate anything for future incapacity. Besides, if said counts did claim less than the amount recovered, there were other counts that claimed more, and the verdict was referable to the good counts.

In view of the evidence, practically undisputed as to the character of injuries sustained, and which are of a permanent nature, we do not consider that the sum awarded

was excessive. The motion for a new trial was properly overruled.

The judgment of the city court is affirmed.

McClellan, C. J., and Dowdell and Denson, JJ., concur.

The Rule that an Employé Assumes the Risk of the negligence of his fellow-servants (Tennesee Coal etc. Co. v. Bridges, 144 Ala. 229, ante, p. 35, and cases cited in the cross reference note thereto), implies that the employer has exercised due care in selecting and retaining in his service competent employés: Jenson v. Great Northern Ry. Co., 72 Minn. 175, 71 Am. St. Rep. 475; Chicago etc. R. R. Co. v. Champion, 9 Ind. App. 510, 53 Am. St. Rep. 357; Handley v. Daly Min. Co., 15 Utah, 189, 62 Am. St. Rep. 916.

SOUTHERN RAILWAY COMPANY v. JOHNSON. [144 Ala. 361, 39 South. 376.]

CARRIERS-Negligence-Passengers, Who are.-If a person who has notified a train conductor that he intends to travel on his train, in attempting to board it while in motion, is thrown to the ground by a sudden jerk of the train necessary to its movement, the relation of carrier and passenger does not exist, and he cannot recover for the injury received from his fall. (pp. 48, 49.)

H. McDaniel and Pettus & Jeffries, for the appellant.

362 SIMPSON, J. In this case the evidence produced by the plaintiff himself shows that the plaintiff remained in a saloon, not connected with the railroad depot or waiting-room, until the train had started and was running from one to three miles per hour (according to the statement of different witnesses), and then ran, took hold of the railing of the caboose, but fell. The only evidence of anything in regard to the movement of the train which might have caused the fall of plaintiff was his statement that when he undertook to take hold of the other railing with his left hand, "It gave a sudden jerk and threw me back. They were putting on more steam or something like that. It went faster, when it gave that sudden jerk and jerked my left hand loose. It swung me around behind the train

and I fell."

In the first place, there was no proof that the jerk was anything more than what was proper and necessary in the