[Florence Gas, Electric Light and Power Co. v. Hanby, Receiver, &c.] of the latter to pay for the work done and the materials furnished, the complainant is entitled to a money recovery, even if it be assumed that the original contract provided for payment in bonds only, against the defendant; and as an incident of the transaction, involving the facts alleged in the bill, an inchoate lien attached to such of defendant's property as comes within statutory terms in favor of the complainant, which, if perfected as provided by law, may be enforced by bill in chancery.-Code, § 3040. 9. If it were necessary to go into the question at all on this appeal, we should be inclined to hold that the primary obligation of the defendant under the express contract was to pay the construction company $26,000 in money, that the bonds were in the first instance to be issued to the latter company only as collateral security for the payment of this money, or as a means of raising the money for application to the debt, that whether they should ever be taken in payment depended upon an election on the part of the construction company so to do, and that so far from such election having been made, the present bill and its leading purpose to enforce a money claim by subjecting property to its satisfaction may be considered an efficacious and binding election, conditioned only on complainant's right to make it a right which, as has been indicated, we should hold he hadon the part or in behalf of the construction company not to accept the bonds in payment at all. 10. The contract involved here was entered into, the work and materials for which a lien is sought to be enforced were done and supplied, the lien therefor attached and was perfected, if perfected at all, and the present bill to enforce the lien was filed prior to the act of February 12, 1891, providing for mechanics' and materialmen's liens and repealing certain sections of the Code of 1886. Acts 1890-91, p. 578. The right now asserted is not affected by that act. If it existed at all, it was then a vested right, which a repeal of the statute could , not destroy or impair, and which it would not be held to impair, if that were within legislative competency, in the absence of an indication of a legislative purpose to give it retrospective operation; and it is now to be worked out and effectuated under the laws of force when the suit was commenced. [Louisville & Nashville Railroad Co. v. Hurt.] 11. It is to be assumed, in the absence of any averment to the contrary, that the construction company was authorized by its charter to enter into and perform the contract involved in this case. What we have said will suffice to indicate the grounds of our conclusion, that the decree overruling the several demurrers to the bill insisted on in argument is free from error. Affirmed. Louisville & Nashvile Railroad Co. v. Hurt. Action by Employ of a Railroad to Recover Damages for 1. Impeachment of party's own witness; right to refresh his memory.— A party can not impeach his own witness by showing that he is unworthy of belief, or by proving that he has made contradictory statements, but he may refresh his memory in a proper way; and it is not error for the court to permit the plaintiff to ask his witness, for the purpose of refreshing his memory, if he did not testify differently on a former trial. 2. American mortality tables as evidence.-In an action against, a railroad company by an employé, to recover damages for personal injuries, the American tables of mortality are admissible to show plaintiff's expectancy of life. 3. Charge as to duties of engineer.—In an action against a railroad company by an employé to recover damages for personal injuries, it was shown that the plaintiff was the engineer on a switch engine; that under the orders of the assistant yard master, who was his superior, he was moving a train from the main track; that by reason of the switch being left open by a brakeman on another train of the defendant, plaintiff's engine left the main track, and collided with another train on a side track. The plaintiff testified that before reaching the switch he saw the safety signal, that he was running between five and six miles an hour; that when he noticed that the switch was open, and a collision with the train standing on the side track was inevitable, by reason of the switch being improperly turned, he reversed his engine, sanded the track, and did all he could to avert the collision. The brakeman, who left the switch open, testified on behalf of the defendant that when he first saw the plaintiff's engine, [Louisville & Nashville Railroad Co. v. Hurt.] after placing the switch, it was only a car length therefrom, that he at once signalled the plaintiff, and started to throw the switch, but did not have time to do so, the plaintiff's engine being run at between sixteen and seventeen miles an hour. Held, that a charge, that "if the plaintiff kept the best lookout for switches and obstructions on the track he could, consistent with his other duties to watch the signals and manage the engine, if such other duties were of equal importance, this would not be negligence," though incomplete, is easily understood, when considered in connection with the evidence, is not calculated to mislead, and the giving of it is not error. 4. Charge as to plaintiff's negligence.—A charge which instructs the jury that, although the plaintiff was guilty of negligence, "if the jury believe from the evidence that this negligence did not contribute to plaintiff's injury," it will not prevent his recovery, asserts a correct proposition, and is properly given. 5. Charge as to evidence of brakeman not setting switch.-A charge, that if the brakeman of defendant who left the switch open, by reason of which the collision occurred resulting in the plaintiff's injury, "knew of plaintiff's peril in time to have prevented the plaintiff's injury, and could have prevented it by using all the means at his command, but negligently failed to apply the means, and if the injury resulted to plaintiff by reason of such failure, this would amount to reckless or wanton conduct, and would entitle the plaintiff to recover, whether the plaintiff was negligent or not, provided plaintiff did all he could to prevent the injury and to save himself from harm, after he became aware of his peril," asserts a correct proposition of law, and is properly given. 6. Inconsistency in charges given by the court.-If, at the request of one of the parties to a suit, the court gives a charge which is inconsistent with the general oral charge to the jury, and which is erroneous, the party in whose favor the charge is given can not take advantage of the error to the prejudice of the other party to the suit. 7. General exception to the oral charge of the court.-A general exception to the whole of the court's oral charge to the jury is not well taken, if any portion of the oral charge, so excepted to, announces correct propositions of law. 8. Evidence of reckless, wanton or willful negligence can be introduced in a complaint which avers simple negligence.-Evidence of reckless, wanton or willful negligence can be introduced on the trial of a cause in which the complaint avers only simple negligence; and whether the evidence thus introduced was sufficient to authorize the plaintiff to recover, notwithstanding he may have been guilty of contributory negligence, is a question for the jury. 9 Averment of wanton or willful negligence not sustained by proof of simple negligence.—An averment in the count of a complaint, that the injury complained of was caused by the wanton, reckless or willful negligence of the defendant, is not sustained by evidence of simple negligence; to authorize a recovery under such a count, it is necessary to prove the negligence as averred. [Louisville & Nashville Railroad Co. v. Hurt.] 10. Contributory negligence no defense for willful negligence.-A plea averring that the plaintiff was guilty of negligence which proximately contributed to his injury complained of, presents no defense to a count which alleges that the injuries were inflicted by the wanton, reckless or willful misconduct or negligence of the defendant. 11. Contradictory statements by party to suit.—Admissions, which are relevant and material to the issue, made by a party to the suit are always admissible against him; and when the party testifies on a subsequent trial differently from what he did on a former trial, it is competent for the adverse party to give in evidence his statement on the former trial, and it is the duty of the jury to consider both statements in connection with the explanation, if any is made, in the light of all the evidence, to determine which is true. 12. Charge on a portion of the evidence.—A charge which singles out any particular part of the evidence and bases a conclusion of law upon it, gives undue prominence to this portion of the evidence, is calculated to mislead the jury, and is properly refused, 13. Charges ignoring any tendency of the evidence properly refused.—If in an action to recover damages for personal injuries, there is evidence which tends to show that plaintiff failed to exercise proper preventive effort, after his peril was discovered, a charge which ignores this tendency of the evidence is properly refused. 14. Refusal of charges which are mere repetition of former charges.—A court commits no error in refusing charges requested by parties to a suit, which are mere repetitions of charges already given by the court; and a mere variation in the use of words, which in no way change the meaning or assert different principles from those already given, do not compel the giving of such charges. 15. Impeachment of witness by contradictory statements.—When it is shown that a witness on his examination makes statements different from those made on a previous examination, these statements only tend to impeach, and when a witness makes an explanation of the different statements, the jury are not authorized to capriciously reject such explanation. 16. Same.-Charges which instruct the jury that a contradiction of a witness by himself constitutes an impeachment, and which ignores an explanation by the witness of such contradition, tend to mislead the jury and are properly refused. 17. Argument of counsel to jury.-Great latitude must be allowed to counsel in addressing the jury, but his argument should be confined to the evidence before them, and the legitimate inferences to be drawn from that evidence; and when counsel transcends this limit, the court should interfere, on proper objection made, and the failure to do so is a reversible error. 18. Same; general objection thereto.-A general objection to statements made by counsel in his argument, some parts of which were authorized by the evidence, is properly overruled; the court not being bound to separate the legal from the illegal. [Louisville & Nashville Railroad Co. v. Hurt.] APPEAL from City Court of Birmingham. This was an action on the case brought by the appellee against the appellant; and sought to recover damages for personal injuries alleged to have been suffered by the plaintiff through the negligence of the defendant or its employés, while the plaintiff was in the employ of the defendant as an engineer. The complaint originally contained but one count; but two others were added by way of amendment. The second count was afterwards withdrawn. The negligence charged in each of the remaining counts was, that of a person in charge of a switch in opening the same and failing to close it, so that the engine upon which the plaintiff was the engineer ran through the switch and collided with a train standing on another track. The last count, which is numbered three, also avers that the employé of the defendant, who was in charge of said switch, after knowledge of the plaintiff's danger, failed to exercise proper diligence to avert it. The defendant filed four pleas, pleading the general issue and contributory negligence; and the plaintiff took issue on each of the four pleas. The facts upon which the case was tried, as shown by the bill of exceptions are as follows: On July 23, 1890, the plaintiff was in the employ of the defendant as an engineer on a switch engine, and was in the yard of the defendant at Birmingham, Alabama, his duty being to make up trains and distribute cars. The freight train numbered 110 had come in ahead of freight train No. 74, and was standing on the main line of the defendant, the engine having gone to the round house. It was the plaintiff's duty to clear the main line of train 110 before freight train 74 came in; so that No. 74 could occupy the main line. No. 74, however, came in before 110 was switched off the main line. The assistant yard-master of the defendant, who was the plaintiff's superior, gave the signal to plaintiff, to signal the incoming train to stop at the switch at Valley Creek crossing, which was done, and train No. 74 stopped there. The plaintiff then went on the main line with the switch engine, and coupled on to the cars which comprised train 110 for the purpose of taking them off the main line; and then backed down the main line. As the plaintiff was backing his train, and when he had reached |