[Kansas City, Memphis & Birmingham Railway Co. v. Matthews.] and in the former on the question whether the injuries caused his death, and thereby entailed damages recoverable by his personal representative. Being thus the thing under inquiry in this as in the case supposed, evidence of his complaints of hurts, attributable to the alleged negligence of the defendant, made throughout the intervening time was properly received, confined, as it was, by the court to expressions in respect of current conditions to the exclusion of narration of past conditions and of the causation of the present conditions complained of. Phillips v. Kelly, 29 Ala. 628; Western Union Telegraph Company v. Henderson, 89 Ala. 510; Birmingham Union Ry. Co. v. Hale, 90 Ala. 8; Roland v. Walker, 18 Ala. 749. The circuit court did not err in overruling defendant's motion to exclude the testimony of Mrs. Matthews that her husband, the injured man, was never able to do any manual labor after he was hurt.-South & North Alabama Railroad Company v. McLendon, 63 Ala. 266. The exception to the court's refusal to give the affirmative charge against count 7, requested by defendant is sought here to be sustained on several grounds. One of these, viz, that the suit is by the plaintiff in her individual capacity and the proof does not show any cause of action in her individually, we have already adverted to, and held untenable. Another ground insisted upon is that there was no evidence before the jury tending to show that intestate's death was caused by his being thrown from the train to which the complaint ascribes his death. It would serve no good purpose to go into a discussion of the evidence relating to this matter. It must suffice us to say that we find that there was evidence adduced before the jury tending to show that the fall from the train was the cause or a proximately contributory cause of intestate's death. Another insistence is that there was a fatal variance between the averment of this count and the proof in respect of the infliction of the alleged injuries upon Matthews. the intestate,-in respect of the quo modo of their infliction in this, that while the court alleges that he "was violently thrown from the train, and so greatly in [Kansas City, Memphis & Birmingham Railway Co. v. Matthews.] jured," etc., etc., the proof is that he voluntarily stepped from the moving train onto the station platform, lost his footing and fell, receiving the alleged injuries. It is to be conceded that there is not in every sense precise correspondence between this averment and the proof. Intestate was not, strictly speaking, thrown violently from the train. He stepped from the train. But when he stepped from the train its motion had imparted a momentum to his body which when he set his foot on the platform threw him violently down. So that an accurate statement of the occurrence proved would be this: That intestate through the negligence of defendant's servants was by the motion of the train, as he attempted to alight, thrown violently to the ground and thereby so greatly injured, etc., that he died. In a sense being violently thrown down by the by the train as he was in the act of leaving it, was being thrown from it. It is probable on the evidence indeed, that the violence to his person which threw him down had its initial effect upon his body just as he set his foremost foot on the platform-the evidence shows that he did not jump with both feet, but that he stepped with his left foot-and started his fall while the other foot was yet on the step of the car. If this were so, it is entirely accurate to say that he was thrown from the car. We think the evidence substantially supports the averment, and that is sufficient.-S. A. & A. P. Ry. Co. v. Gillum, 20 S. W. 697; T. P. Ry. Co. v. Williams, 62 Fed. Rep. 440; Hindman v. Timme, 8 Ind. App. 416;L. S. & M. S. Ry. Co. v. Hundt, 140 Ill. 525; C. H. & I. R. R. Co. v. Revalec, 17 Ind. App. 657; Moser v. St. P. & D. R. R. Co. 42 Minn. 480; Wilson v. Smith, 111 Ala. 170, 176. It is further insisted that the affirmative charge should have been given for defendant for that the evidence without conflict shows that Matthews was guilty of negligence which proximately contributed to his injury in attempting to get off the train when and as he did. We do not find this to be the fact. One phase of the evidence tends to show that his attempt to alight was made when the train had just started and was moving [Kansas City, Memphis & Birmingham Railway Co. v. Matthews.] very slowly, probably not beyond the rate of a mile or two an hour. Though it was night and the place was not lighted, the jury might have found that he knew precisely the nature and location of the platform, as he lived at that station and had frequent occasion to get on and off trains there; and there is no tendency of the evidence to show that he miscalculated his proposed footing on the platform. It was solely for the jury to say in view of this aspect of the evidence whether he was negligent in making the attempt to alight, as has been often decided. Nor, in our opinion, can it be said as matter of law that he was negligent in the manner of his attempting to alight, i. e., on his left foot, the train moving to his left. A train may be moving so slowly as to admit of this being done without danger, and on the evidence as to the speed or apparent speed of the train when the attempt was made, it was for the jury to say whether a man of ordinary prudence would have made the attempt. Charge 3 refused to defendant is an apt illustration of the fact that much is said and properly said in the opinions of appellate courts which is not proper to be given in charge to juries. This excerpt from the opinion in East Tenn. Va. & Ga. Ry. Co. v. Holmes, 97 Ala. 332, is as applied to the case at bar, patiently abstract and argumentative; and the same is true of charge 11. Charge 5 was properly refused on considerations adverted to above having reference to the issue of contributory negligence vel. non. If the court erred in refusing the 7th charge requested by the defendant, the error was cured by the giving of defendant's 46th charge which was in substance and almest literally identical with charge 7. Charges 10 and 16 refused to defendant were bad for failing to hypothesize that intestate's negligence therein referred in point of fact contributed to his injury. The evidential fact hypothesised in charge 9 as to Matthews being cautioned against making the attempt to alight did not demonstrate the negligence of such attempt: The question was still for the jury. Judge Matthews' death may have been directly caused [Cox v. O'Neal.] by disease occurring months after his injury, but this disease may yet have been caused by the injury, and defendant would be liable for the death, the chain of causation starting with defendant's negligence and ending in Matthews' death.-Armstrong v. Montgomery St. Ry. Co. 123 Ala. 233. Charge 14 was therefore bad. Charge 15 requested by defendant is a pure express argument. We are not prepared to say that the verdict of the jury was so palpably against the evidence as to justify us in the conclusion that the court below erred in overruling the motion for a new trial. Affirmed. HARALSON, TYSON and DOWDELL, J.J., concurring. 1. Cox v. O'Neal. Bill in Equity to enjoin a Suit at Law. Injunction; equity jurisdiction; evidence relating to lease of land. Where at the time of leasing a certain tract of land, the lessee is the colonel of a regiment of the Alabama National Guards, and the lease contract is made to the lessee in his own name, and thereafter an encampment of said regiment is held upon the leased premises, the proof of the fact that the lease contract was made, not for the lessee individually, but for the benefit of his said regiment, and that it was the regiment's lease, and not the lessee's, can be made, if at all, as well in a suit at law by the lessee against the lessor for a breach of contract of lease, as in a court of equity; and the necessity of making such proof as a defence to the claim of the lessee, constitutes no ground for a resort to a court of equity by the lessor for the purpose of enjoining an action at law. [Cox v. O'Neal.] APPEAL from the Chancery Court of Mobile. The facts in this case are sufficiently stated in the opinion. CHARLES L. BROMBERG, JR., and MASSEY WILSON, for appellant. Cited Kent et al. v. Dean, 128 Ala. 608-9; 11 Am. & Eng. Ency. Law (2nd Ed.) 421;Comer v. Bankhead, 70 Ala. 493; Blackburn v. Fitzgerald, 130 Ala. 584; Scottish Union, etc. v. Dangaix, 103 Ala. 395. MCALPINE & ROBINSON, contra.-Under the facts averred, it seems to us, there can be no reasonable question that the purchase of the lumber and of the rights accruing under the lease, and the taking of title in himself, made Colonel Cox a resulting trustee for the First Regiment of the Alabama National Guard. The doctrine is clearly established that where a person purchases a property right with the moneys of another and takes the legal title in himself, a trust results therefrom which may be proved by parol.-4th Mayfield's Dig. p. 1016 par. 238 and cases cited; 27 A. & E. E. L. 248; Milner v. Standford, 192 Ala. 277; Milner v. Rucker, 112 Ala. 360; Thompson v. Hartline, 105 Ala. 263, 268; Fink v. Umscheid, 2 L. R. A. 146 (note); Green v. Green, 46 L. R. A. 525; 27 Am. Eng. Enc. Law, p. 269 et seq; 2 Pomeroy Eq. Ju., pars. 1030-1, 1075. HARALSON, J.-J. W. Cox, the defendant below and appellant here, was Colonel of the First Infantry, Alabama National Guards, on and prior to the 1st day of July, 1897. On that day he entered into a written contract with the complainant, William O'Neal, which recited that, "I, William O'Neal, for and in consideration of the sum of one dollar to me in hand paid, the receipt of which is hereby acknowledged, hereby lease to James Wade Cox for the term of four years, to commence on the 1st day of June, 1897, the following described real estate (describing the property.) It is understood and |