46 So. 587 | Ala. | 1908
This is the second appeal in this case. — Ala. Great Southern R. R. Co. v. Vail, 142 Ala. 134, 38 South. 124, 110 Am. St. Rep. 23. The case at the last trial went to the jury upon issues made up on the first, fourth, fifth, ninth, and tenth counts of the complaint as amended; the other counts having been eliminated by rulings of the court on demurrers. The questions presented on the present appeal arise out of the rulings of the lower court on the introduction of evidence and the refusal of the court to give certain written charges requested by the defendant. At the conclusion of the evidence the court gave the general charge in favor of the defendant as to all of the counts except the first.
The lulling of the court on objections to the plaintiff’s testimony as to how the work was done, and that James Green, a fellow servant of the plaintiff, “was. a kind of slow felow,” was free from error. At the time this evidence was offered, the fourth count of the complaint, with the issues presented by this count, was before the jury. One of the issues presented y/as-tlie incompetency of the said James Green, and thij^evideuce on that issue was relevant and competent.
The witness Mose Mitchell was shown to be an expert as to the matters inquired about of him, and the objections, therefore, as shown by the record, were properly overruled.
The evidence of the defendant’s witness D. M. McCal-lar, to which plaintiff’s objection was sustained, was properly excluded. His identification and description of the piece of timber, from what some one else told him as being the piece that fell upon the plaintiff, was inadmissible, without the accompanying testimony of such other person who had actual knowledge of the fact, and that it was the piece of timber pointed out to the witness McCallar.
This brings us to tbe consideration of tbe written charges refused to tbe defendant. As stated above, when tbe evidence was concluded, tbe court gave tbe general charge in favor of tbe defendant as to all of tbe counts except the first. Tbe tenth charge requested by tbe defendant was properly refused. Tbe negligence alleged in tbe first count was tbe failure to provide a sufficient number of bands to unload tbe timber from tbe car. Tbe facts hypothesized in tbe charge as to the.icy condition of tbe timber, and of its slipping and falling by reason thereof, and proximateiy causing tbe injury complained of, might all have been true, and still tbe injury could have been tbe direct and proximate result of tbe alleged negligence. Tbe icy condition of tbe timber might well have been an additional reason for care on tbe part of tbe master in providing a sufficient number of men in unloading tbe car.
In tbe refusal of tbe eleventh charge we think tbe trial court committed error. If the negligence of James Green proximateiy caused tbe injury, then tbe negligence charged in tbe first count, if a cause at all, was a remote cause. It is not a case, as contended by counsel for appellee, of two concurring causes producing an injury. The negligent act of James Green was an independent intervening cause, wholly disconnected from tbe negligence averred in tbe count of a failure to provide a sufficient number of men. There was evidence which tended to show that tbe negligence of James Green was tbe proximate cause of tbe injury. For cases discussing the question of proximate and remote
There was evidence from which the jury were authorized to find that the injury to the plaintiff was permanent in its effects; and hence charge 12, requested by the defendant, was properly refused.
For the error pointed out,- the judgment is reversed, and the cause remanded.
