We adhere to and reaffirm, the rulings made on the former appeal in this case to the effect: (1) that counts 2 and 8 added to the complaint by amendment did not constitute a departure from the original complaint; and (2) that said new counts had relation to the filing of the original complaint, and were not barred by the statute of limitations of one year. L. & N. R. R. Co. v. Woods, 105 Ala. 561.
The fact that it would have been the duty of the rear brakeman on the train, upon seeing that it was going at a dangerous rate of speed, to set up brakes was obviously not pertinent to any issue before the jury at the trial. The circuit court erred in allowing it to go to the jury-
There was also error in admitting evidence as to what the plaintiff saved from month to month out of his wages. The question here was not what the next of kin lost by plaintiff’s death : he was not dead ; but what the plaintiff himself lost in consequence of the injuries sustained, and what he was receiving for his services was the legitimate element of damage in this connection, whether he spent all or none of his earnings.
There was no error in any of the other rulings on the admissibility of testimony which are discussed in the brief of appellant’s counsel, nor in the action of the court in refusing the instructions to which counsel direct our attention. Such charges are either affirmatively bad as applied to the averments of the complaint and the evidence, or they are argumentative or misleading.
Reversed and remanded.