but grantees can avoid such consequences by taking care to see that their conveyances are properly executed.

Affirmed.

MARRIED WOMEN - DEEDS - ACKNOWLEDGMENTS. As to what mistakes in deeds and acknowledgments thereto, made by married women, can be corrected in equity, see extended note to Gardner v. Moore, 51 Am. Rep. 458462.

MARRIED WOMEN - ACKNOWLEDGMENTS TO DEEDS.

- As to the defects in acknowledgments of married women, and what acknowledgments by them are sufficient, see Bull v. Coe, 77 Cal. 54; 11 Am. St. Rep. 235, and cases in note 242; Carlton v. Williams, 77 Cal. 89; 11 Am. St. Rep. 243, and cases collected in note 244.

MARRIED WOMEN ACKNOWLEDGMENTS. The cerPrivy Examination.· tificate of a privy examination of a married woman is valid without the addition of the seal, to the signature, of the officer who makes it: Lucas v. Larkin, 85 Tenn. 355. The privy examination of a married woman taken on Sunday does not invalidate her deed: Id. Without privy examination, the execution of a promissory note by a married woman stipulating to bind her separate estate, without describing what constitutes such estate, creates a charge, but not a lien, upon her separate estate: Warren v. Freeman, 85 Tenn. 513. Before the privy examination of a married woman can be taken to a deed executed by a husband and wife, such deed must first be acknowledged by both the spouses, or its execution by both proven by a subscribing witness: Wynne v. Small, 102 N. C. 133. That a privy examination may be sufficient, it is not necessary that the husband go entirely out of the room; for all that is desired is, that the wife shall have full liberty to express to the acknowledging officer her desire in the matter: Hall v. Castleberry, 101 Id. 153. The offi. cer's certificate must show that upon examination, without the hearing of the husband, he made the wife acquainted with the contents of the instrument; and making her acquainted with the contents in the presence of her husband, and then procuring her mere acknowledgment when he is not present, is not a sufficient privy examination: Bollinger v. Manning, 79 Cal. 7. A certificate of privy examination must show that the married woman both acknowledged the deed and declared that she willingly executed it: Laidley v. Land Co., 30 W. Va. 505; compare Blair v. Sayre, 29 Id. 604.

MARRIED WOMEN — ACKNOWLEDGMENTS. — Miscellaneous Instances. — A married woman's acknowledgment taken before an officer, but not signed by him until it has been recorded, and his official term has expired, is not good, and does not make the deed effectual: Fitzgerald v. Milliken, 83 Ky. 70. A married woman's acknowledgment is good when taken before a deputy clerk, though merely evidenced by these words: "Acknowledged by Willia C. Woods, this May 5, 1873. (Signed) J. H. Lapsley, D. C. M. C. C. ": Woods v. James, 87 Ky. 511. The certificate of a married woman's acknowledgment is only prima facie evidence of the facts therein stated: Mays v. Pryce, 95 Mo. 603; but compare Cox v. Gill, 83 Ky. 669, as to the conclusiveness of facts stated in a married woman's acknowledgment when certified by a proper officer.

MARRIED WOMAN'S DEED, TO BE A GOOD CONVEYANCE, must be executed precisely as directed by statute: See Williams v. Cudd, 26 S. C. 213; 4 Am. St. Rep. 714, and note 718. A conveyance not properly acknowledged by a married woman is void as her conveyance: Bollinger v. Manning, 79 Cal. 7.

LOUISVILLE AND NASHVILLE R. R. Co. v. HALL.

187 ALABAMA, 708.]

RAILROAD COMPANIES - REQUIREMENTS OF DUTY IN RESPECT TO CONSTRUCTION OF BRIDGES. When, in crossing a public highway, it becomes necessary for a railroad company to span it with a bridge, it is the duty of the company to place the structure at such an elevation as that trains, with their customary employees, can pass under it unharmed. But where inequality of surface or other hindrance, occurring naturally or in the proper construction or grade of the railroad track, renders such elevation impossible, or would greatly incommode the public in the use of the bridge, or greatly increase the expense to the company, it may be so constructed as to extend below the line of absolute safety; but in no case would it be permissible to so place the bridge that brakemen on top of the train, and while in the discharge of their duties, could not avoid danger by bending or stooping.

RAILROAD COMPANIES - RINGING BELL OR BLOWING WHISTLE AT CROSSING. The design of the statutory requirement that the conductor or engineer shall ring the bell or blow the locomotive-whistle, on approaching a public road crossing, is to warn and protect persons who are about to cross the track of the road; and it has no application to the case of a brakeman suing for personal injuries, caused by his being struck by the timbers of a bridge overhead while on top of one of the cars, in the discharge of his duty.

RAILROAD COMPANIES DUTY TO PROVIDE WARNING SIGNALS FOR PROTECTION OF EMPLOYEES. — The question of duty and liability of a railroad company, in respect to the use of appliances to warn employees when approaching a public road crossing spanned by a bridge overhead, is to be determined by utility, and the usage and custom of well-regulated railroads. If the appliances are useless and hurtful, it cannot be negligence to reject them, and if many well-regulated railroads abstain from their use, the failure to use them is not of itself negligence; and their use by a majority of railroads does not necessarily require all railroads to adopt them, nor impute negligence for failure to do so.

RAILROAD COMPANIES - NOTICE TO BRAKEMAN OF DANGER FROM LOW BRIDGE-CONTRIBUTORY NEGLIGENCE. When a brakeman employed by a railroad company is placed on a train running on a road with which he is not familiar, and such train has to pass under a low bridge or bridges, which, though not high enough to allow him to pass in an erect position on top of a car, is yet high enough to meet legal requirements, it is the duty of the company to warn or notify him of the danger he is to encounter, and failure to do so is negligence, for which the company would be liable. But if he has been sufficiently warned or notified of the danger, and from inattention, indifference, absent-mindedness, or forgetfulness, he fails to inform himself, or to take the necessary steps to avoid the injury, he is guilty of such contributory negligence as will defeat a recovery.

PLEADING SUFFICIENCY OF Complaint. — The complaint in an action by a brakeman against a railroad company to recover for personal injuries caused by being struck by a bridge overhead across a public road, while on the top of a car in the discharge of his duties, is insufficient, if it fails to aver that the bridge in question was erected or maintained by the railroad company.

PLEADING AND PRACTICE. SUSTAINING DEMURRER TO SPECIAL PLea, ERRONEOUS AT ALL, is error without injury, where, as the record shows, the defendant had the benefit of the same defense under another special plea. EVIDENCE. GENERAL NOTORIETY IS GENERALLY ADMISSIBLE EVIDENCE as tending to prove notice of a fact, when such notice is a material inquiry; but it is never competent evidence to prove the fact itself, which must be shown by other testimony. WITNESSES - EXPERT TESTIMONY. - Railroad superintendent who has been employed on railroads for twenty years, and who has served as fireman, brakeman, baggage-master, yard-master, and train-master, may give his opinion as an expert as to the merits or demerits of "whipping-straps" as cautionary signals to brakemen of the approach of the train to low bridges, and whether or not they were generally in use on railroads regarded as well regulated; but he could not give his opinion as to the prudent management of the defendant's railroad.

PLEADING EVIDENCE.

-

CONTRIBUTORY NEGLIGENCE, WHEN PLEADED ALONE, IS AN ADMISSION of negligence on the part of the defendant; but when it is interposed with the plea of not guilty, the effect of the double defense is, that all negligence on the part of the defendant is denied, and the burden of proof is thrown on the plaintiff.

TRIAL - REQUISITES OF CHARGE TO JURY.-Charges to juries should, if possible, be plain, simple, and easily understood, free from obscurity, involvement, ambiguity, metaphysical intricacy, or tendency to mislead; and a charge obnoxious to any of these objections should be refused, although on dissection it may assert a correct legal proposition. The office and purpose of a charge is to enlighten the jury, and it should go no further than to state plain propositions of law, applicable to the tendency or varying tendencies of the evidence.

ACTION by William G. Hall, a minor, suing by his next friend, against the Louisville and Nashville Railroad Company, to recover damages for personal injuries sustained by him while in the employ of the defendant as a brakeman. The plaintiff, while in the discharge of his duties as brakeman on the top of a freight train, was struck by the timbers of an overhead bridge, which spanned a public road near Greenville, Alabama, and was knocked to the ground, and was so seriously injured that it became necessary to amputate one of his feet. Other facts appear in the opinion. The verdict and judgment were for the plaintiff, and the defendant assigned

error.

Gaylord B. Clark, and F. B. Clark, Jr., for the appellants. R. Inge Smith, and Greg. L. & H. T. Smith, contra.

STONE, C. J. We lay down the following legal propositions: When, in crossing a public highway, it becomes necessary for a railroad company to span it with a bridge, it is its duty, if reasonably practicable, to place the structure at such an ele

vation as that trains with their customary employees can pass under it unharmed: Smoot v. M. & M. R'y Co., 67 Ala. 17; Louisville etc. R. R. Co. v. Allen, 78 Id. 501; Georgia Pac. R. R. v. Propst, 83 Id. 518; H. & T. R'y Co. v. Oram, 49 Tex. 341; Wilson v. Louisville etc. R. R. Co., 85 Ala. 269. This is not an absolute, unbending requirement, but it will yield to a reasonable extent to circumstances, as many other natural and social rights must yield to other rights and interests, which duty requires to be conserved. If inequality of surface, or other hindrance, occurring naturally or in the proper construction or grade of the railroad track, render such elevation impossible, or greatly incommode the public in the use of the bridge, or greatly or unduly increase the expense to the railroad company, then one inconvenience must yield somewhat to the other. In such case, the bridge may be so constructed as to extend below the line of absolute safety. A bridge constructed and maintained with proper regard to these conditions, would not, without more, be negligence: Patterson on Railway Acc. Law, sec. 285; 2 Rorer on Railroads, 1217; Wells v. B., C. R., & N. R. R. Co., 2 Am. & Eng. R'y Cas. 243; Rains v. St. L., I. M., & S. R'y Co., 5 Id. 610; Clark v. Richmond etc. R. R. Co., 18 Id. 78; Baylor v. Del., L., & W. R. R. Co., 40 N. J. L. 23; 29 Am. Rep. 208; Illick v. Flint & P. M. R. R. Co., 67 Mich. 632. In no case, however, would it be permissible to so place the bridge that brakemen on top of the train, in discharge of their duties, could not avoid danger by bending or stooping. A bridge, such as here last supposed, would be gross negligence, and per se a nuisance: Illinois Cent. R. R. Co. v. Welch, 52 Ill. 183; 4 Am. Rep. 593; Chicago etc. R. R. Co. v. Gregory, 58 Ill. 272; Chicago etc. R. R. Co. v. Russell, 91 Id. 298; 33 Am. Rep. 54. If such bridge is so constructed as to extend below the line of absolute safety, then other duties rest on the railroad company.

The bridge in question was part and parcel of the public highway. The record affords evidence that on the trial below the question was considered, whether it was the duty of the defendant corporation "to blow the whistle or ring the bell at least one fourth of a mile before reaching [a] public road crossing,. . . . and continue to blow the whistle or ring the bell at short intervals until the train passed the crossing": Code 1886, sec. 1144. That statute has nothing to do with this case. Its design was to warn and protect persons who, at a public crossing, pass across and directly on the track, and

who would be in danger of being struck and run over by an approaching train: Alabama etc. R. R. Co. v. Hawk, 72 Ala. 112; 47 Am. Rep. 403; Nashville etc. R. R. Co. v. Hembree, 85 Ala. 481.

Other questions were raised in the trial court touching the duty of railroad companies to provide or furnish warning signals. Among these may be mentioned "whipping-straps," and placing a cautionary light on the bridge. Considered abstractly, these are scarcely legal questions. Utility, and the usage and custom of well-regulated railroads, must determine the question of duty in this regard. If useless or hurtful, it cannot be negligence to reject them. So, at most, if many well-regulated railroads abstain from their use, this absolves from all duty to resort to them. By the word "many," we intend to be understood as meaning not a mere excess above the adjective "few." "Many" denotes multitude; and while it is not the synonym of the word "majority," our meaning is, that if a relatively large number, as compared with the whole number, abstain from their use, then to omit them is not of itself negligence. As to appliances,-particularly new inventions, or changes claimed to be improvements, -all railroads are not required to conform to one standard. Allowance is and must be made for diversity of opinion; and their use by a majority of roads does not necessarily require all railroads to adopt them: Louisville etc. R. R. Co. v. Allen, 78 Ala. 494; Ga. Pac. R. R. Co. v. Propst, 83 Id. 518; Wilson v. Louisville etc. R. R. Co., 85 Id. 269; Baldwin v. C., R. I., & P. B. R. R. Co., 50 Iowa, 680.

When a brakeman is placed on a freight train, running on a road with which he is not familiar, and such train has to pass under a low bridge or bridges, the law, which simply voices the sentiment of humanity, requires that notice be given him of the danger he is to encounter. This notice must be reasonable; that is, he must be reasonably instructed, so as to put him on the look-out, and on inquiry and observation, that he may inform himself of the locality of the places of danger. The whole duty is not on the railroad company. The employee must give heed to the notice and instructions given him, and must employ his senses, his reasoning faculties, and his attention, alike for his own safety and the welfare of the road. If he has not been sufficiently warned or notified to enable him by proper attention and diligence to learn where the points of danger are, then this would be negligence, for