SHARPE, -T.
This action is brought under the Employer’s Liability Act ('Code, § 1749), to recoA'-er for injuries receded by plaintiff, who Avas a- brakeman on defendant’s train, by the derailment of a coal car Avhich, with other coal cars, was being pushed by ah engine to-Aiards a coal tipple, and along an unfinished track leading from the main line to the tipple. At the time of the accident. plaintiff Avas assigned to the duty of giving signals from the front of the train to the engineer, and in performing that service he sat on the front of the end car Avith his legs outside the car’s bed. While in that position the end or “grease box” of the car axle caught on the upAvard- projecting end of an unused cross-tie Avhich lay outside the rails Avith its other end imbedded in earth or refuse from a mine, and the car Avas thereby throAvn from the track and against another car Avhich Avas standing on an adjacent track, and plaintiff’s leg was crushed in the collision.
The defendant pleaded the general issue and specially that- plaintiff Avas guilty of negligence which contributed to his injury in that “he Avas riding on the car in front, for the purpose of Avatching for obstructions on the track, and Aidiile so riding negligently rode with his leg over the side, of the car and on the outside, and failed to notify anyone on the train that the obstruction mentioned in said complaint was on or in dangerous proximity to the track ¿as it was his duty to do in the premises.”
[646]*646While being examined as; a witness plaintiff testified in substance that before the train went on the new track and on the same morning he received instructions from the conductor by a telegram “which stated that they wanted two cars placed at No. 4 drift and that the track was all O. K. The telegram being signed by Mr. Moody, the train dispatcher.” On defendant’s objection and motion this testimony was ruled out, and plaintiff then testified with reference to his loss of, and his inability to produce the telegram. “Thereupon [quoting from the bill of executions] defendant objected to the witness testifying as. to the telegram, upon the ground that the evidence was illegal, irrelevant and immaterial and was not the best evidence, and that there was no evidence to show the telegram had been signed by Mr. 'Moody; nor was there any evidence to show who' Mr. Moody was, and upon the ground that the telegram spoken of by the witness was not the original telegram, but, if anything, was a mere copy.” The court overruled the objection, and the witness was allowed without further objection to testify “that the telegram spoken of was handed to him by the conductor of his train, who said diere is your work order, the track is all right,’ and that the telegram was' signed by Mr. Moody, the train dispatcher, and instructed them to place two cars at No. 4 drift, and stated that the track on which the accident happened was all O. K.; that he saw the operator at Coalburg hand the telegram to the conductor.” The grounds of the objection did not go to the sufficiency of the proof relating to the loss of the paper containing the message, and were each untenable. Those going to the authenticity of the telegram were mot by the testimony above quoted given subsequent to the objection. That any copy of the telegram was made does not appear from the evidence or from judicial or common knowledge of methods used in the business of train dispatching. The contents of the telegram and the. fact of its delivery to the plaintiff were relevant as tending to show that plaintiff when injured was acting in the scope of his employment, and as an assurance [647]*647of the track’s good condition, it had a tendency to acquit him of negligence.
As furnishing data for the assessment of damages it was proper for the plaintiff to prove his former capacity to work and earn.—Seaboard Mfg. Co. v. Woodson, 98 Ala. 378. For that purpose evidence of what he earned Avhile in the service of the Birmingham Southern Bail-road 'Company was admissible. No good reason exists for limiting such proof to earnings in the immediate employment wherein the injury is received.
One species of negligence made actionable by the act referred, to is that of any person in the service of the employer who has charge or control “of any part of the track of a railway.” To bring a case within this provision it is not essential that the track occasioning the injury should he finished or in charge of the regular section foreman. It it has reached such stage of construction as to become “the track of a railway” and has been adopted for use, though irregularly, negligence of the. employe in charge of it, regardless of whether he be what is known as a section foreman, ór a construction foreman, is chargeable to the employer. Here there is evidence tending to show the track in question, though unfinished, had been used for hauling coal every tAvo or three days for fifteen or twenty days. That during that time Honeycutt, the construction foreman, had charge of the track for - the purpose of building it and keeping it in order while it Avas being operated, though at times Avhen he was absent, it was in charge of his assistant; that Honeycutt Avorked at the track on the day of the accident, and that morning told the conductor of plaintiff’s train that the track in question was all right and that he could use it to place cars at the tipple. This evidence was not all free from contradi (- tion, but it placed exclusively Avithin the proAdnce of the jury the question of whether Honeycutt was in charge of the track and was negligent in such Avay as to bind the company in this action, by his failure to diseoA'er, or to remedy after discoArery, the danger attending the position of the cross-tie, and this Avh ether [648]*648the tie was placed in that position by employes of the mining company or not, provided it had remained so long enough, to have enabled whoever was in charge of the track to have discovered the tie and the danger attendant- upon its position which latter question also was for the jury. In all or some of these inquiries defendant’s charges'' 1, 4, 7,-8, 19'and 29 would each have invaded the jury’s province.
A good ground for refusing charge 8 which is applicable also to charge 4 is that it implies and might have misled the jury to believe it 'was their duty to render a verdict with special reference to the particular count mentioned, and such a verdict the law did not require. It is not equivalent to an instruction merely negativing a right to recover on that count.—Mobile & Ohio R. R. R. Co. v. George, 94 Ala. 199; L. & N. R. R. Co. v. Sandlin, 125 Ala. 585; Dorsey v. The State, 134 Ala. 553.
In plea 2 plaintiff’s act of riding with his leg outside the car is not averred to have been of itself negligence contributing proximately to his injury, but it is that act combined with, and coalescing with, a negligent failure on his -part to give notice of the obstruction which i-s set up as constituting contributory negligence. The negligent failure to give such notice was by the averments made material to be proved and without a finding of that fact the defense presented, by the plea" could not have been established. See King v. People’s Bank, 127 Ala. 266; Bienville Water Supply Co. v. City of Mobile, 125 Ala. 178; Birmingham, etc., Co. v. Baylor, 101 Ala. 488; Highland, etc., R. Co. v. Dusenberry, 94 Ala. 413; Armstrong v. Montgomery St. R’y Co., 123 Ala. 123; Louisville & Nashville R. Co. v. Mothershed, 97 Ala. 261.
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SHARPE, -T.
This action is brought under the Employer’s Liability Act ('Code, § 1749), to recoA'-er for injuries receded by plaintiff, who Avas a- brakeman on defendant’s train, by the derailment of a coal car Avhich, with other coal cars, was being pushed by ah engine to-Aiards a coal tipple, and along an unfinished track leading from the main line to the tipple. At the time of the accident. plaintiff Avas assigned to the duty of giving signals from the front of the train to the engineer, and in performing that service he sat on the front of the end car Avith his legs outside the car’s bed. While in that position the end or “grease box” of the car axle caught on the upAvard- projecting end of an unused cross-tie Avhich lay outside the rails Avith its other end imbedded in earth or refuse from a mine, and the car Avas thereby throAvn from the track and against another car Avhich Avas standing on an adjacent track, and plaintiff’s leg was crushed in the collision.
The defendant pleaded the general issue and specially that- plaintiff Avas guilty of negligence which contributed to his injury in that “he Avas riding on the car in front, for the purpose of Avatching for obstructions on the track, and Aidiile so riding negligently rode with his leg over the side, of the car and on the outside, and failed to notify anyone on the train that the obstruction mentioned in said complaint was on or in dangerous proximity to the track ¿as it was his duty to do in the premises.”
[646]*646While being examined as; a witness plaintiff testified in substance that before the train went on the new track and on the same morning he received instructions from the conductor by a telegram “which stated that they wanted two cars placed at No. 4 drift and that the track was all O. K. The telegram being signed by Mr. Moody, the train dispatcher.” On defendant’s objection and motion this testimony was ruled out, and plaintiff then testified with reference to his loss of, and his inability to produce the telegram. “Thereupon [quoting from the bill of executions] defendant objected to the witness testifying as. to the telegram, upon the ground that the evidence was illegal, irrelevant and immaterial and was not the best evidence, and that there was no evidence to show the telegram had been signed by Mr. 'Moody; nor was there any evidence to show who' Mr. Moody was, and upon the ground that the telegram spoken of by the witness was not the original telegram, but, if anything, was a mere copy.” The court overruled the objection, and the witness was allowed without further objection to testify “that the telegram spoken of was handed to him by the conductor of his train, who said diere is your work order, the track is all right,’ and that the telegram was' signed by Mr. Moody, the train dispatcher, and instructed them to place two cars at No. 4 drift, and stated that the track on which the accident happened was all O. K.; that he saw the operator at Coalburg hand the telegram to the conductor.” The grounds of the objection did not go to the sufficiency of the proof relating to the loss of the paper containing the message, and were each untenable. Those going to the authenticity of the telegram were mot by the testimony above quoted given subsequent to the objection. That any copy of the telegram was made does not appear from the evidence or from judicial or common knowledge of methods used in the business of train dispatching. The contents of the telegram and the. fact of its delivery to the plaintiff were relevant as tending to show that plaintiff when injured was acting in the scope of his employment, and as an assurance [647]*647of the track’s good condition, it had a tendency to acquit him of negligence.
As furnishing data for the assessment of damages it was proper for the plaintiff to prove his former capacity to work and earn.—Seaboard Mfg. Co. v. Woodson, 98 Ala. 378. For that purpose evidence of what he earned Avhile in the service of the Birmingham Southern Bail-road 'Company was admissible. No good reason exists for limiting such proof to earnings in the immediate employment wherein the injury is received.
One species of negligence made actionable by the act referred, to is that of any person in the service of the employer who has charge or control “of any part of the track of a railway.” To bring a case within this provision it is not essential that the track occasioning the injury should he finished or in charge of the regular section foreman. It it has reached such stage of construction as to become “the track of a railway” and has been adopted for use, though irregularly, negligence of the. employe in charge of it, regardless of whether he be what is known as a section foreman, ór a construction foreman, is chargeable to the employer. Here there is evidence tending to show the track in question, though unfinished, had been used for hauling coal every tAvo or three days for fifteen or twenty days. That during that time Honeycutt, the construction foreman, had charge of the track for - the purpose of building it and keeping it in order while it Avas being operated, though at times Avhen he was absent, it was in charge of his assistant; that Honeycutt Avorked at the track on the day of the accident, and that morning told the conductor of plaintiff’s train that the track in question was all right and that he could use it to place cars at the tipple. This evidence was not all free from contradi (- tion, but it placed exclusively Avithin the proAdnce of the jury the question of whether Honeycutt was in charge of the track and was negligent in such Avay as to bind the company in this action, by his failure to diseoA'er, or to remedy after discoArery, the danger attending the position of the cross-tie, and this Avh ether [648]*648the tie was placed in that position by employes of the mining company or not, provided it had remained so long enough, to have enabled whoever was in charge of the track to have discovered the tie and the danger attendant- upon its position which latter question also was for the jury. In all or some of these inquiries defendant’s charges'' 1, 4, 7,-8, 19'and 29 would each have invaded the jury’s province.
A good ground for refusing charge 8 which is applicable also to charge 4 is that it implies and might have misled the jury to believe it 'was their duty to render a verdict with special reference to the particular count mentioned, and such a verdict the law did not require. It is not equivalent to an instruction merely negativing a right to recover on that count.—Mobile & Ohio R. R. R. Co. v. George, 94 Ala. 199; L. & N. R. R. Co. v. Sandlin, 125 Ala. 585; Dorsey v. The State, 134 Ala. 553.
In plea 2 plaintiff’s act of riding with his leg outside the car is not averred to have been of itself negligence contributing proximately to his injury, but it is that act combined with, and coalescing with, a negligent failure on his -part to give notice of the obstruction which i-s set up as constituting contributory negligence. The negligent failure to give such notice was by the averments made material to be proved and without a finding of that fact the defense presented, by the plea" could not have been established. See King v. People’s Bank, 127 Ala. 266; Bienville Water Supply Co. v. City of Mobile, 125 Ala. 178; Birmingham, etc., Co. v. Baylor, 101 Ala. 488; Highland, etc., R. Co. v. Dusenberry, 94 Ala. 413; Armstrong v. Montgomery St. R’y Co., 123 Ala. 123; Louisville & Nashville R. Co. v. Mothershed, 97 Ala. 261. Refused charges 11, 12, 13, 23, 30 and 31—the last because of the alternate character of its averments — ignored the necessity of such finding by the jury.
Another objection to charges 11,12, and 13, and which applies to charges 15, 17 and 18, is that they each improperly assumed that on the facts hypothesized therein, [649]*649contributory negligence was imputable to the plaintiff as a legal conclusion. The sufficiency of his diligence is measurable by the probable conduct of a man of ordinary prudence and judgment as it would have been under like circumstances, and whether by that test he was at fault either in respect, of his position on the car, or of his failure to perceive and give warning of the danger of striking the cross-tie' was for the jury and not for the court to determine. Failure to recognize, the height of the cross-tie and the probality of its touching the car, may have been negligence on the part of the person charged particularly with the duty of looking after the track’s condition, though a like failure on the part, of one occupying the position and having the duties of a brakeman might n,ot. be negligent. See Magee v. North Pac. Coast R. Co., 78 Cal. 430, 12 Am. St. Rep. 69.
Charge 22 contains several propositions, some of which are abstract, there being, no evidence to which they are referable. That charge ás a whole is improperly argumentative.
Unless the danger of derailment by the projecting tie was obvious to, or was understood by, the plaintiff, he could not have been held to have assumed the risk of such derailment as was assumed by refused charge 12. Osborne v. Alabama Steel & Wire Co., ante, p. 571.
Given charge 23 invaded the jury’s province and should have been refused. The court had not the right to qualify it but the qualification placed on it by the court in its oral charge was not otherwise improper, and since the qualification amounted only to a correction of a bad written charge, it is not ground for reversal.—Planters, etc., Co. v. Thurston, 103 Ala. 255.
No reversible error appearing, the judgment will be affirmed.