Bessemer Land & Improvement Co. v. Dubose

125 Ala. 442 | Ala. | 1899

TYSON, J.

There is no judgment to support the assignments of error predicated upon the rulings of the court on the demurrers interposed to the complaint as amended and to the defendant’s pleas two and three, so far as they irarport to answer the-7th and 8th counts of the complaint. We cannot, therefore, review- the actions of the court with respect thereto. — Cartlidge v. Sloan, 124 Ala. 596; McDonald v. Railway, Co., 123 Ala. 227, and authorities there cited.

On cross-examination of Hudgins, the 'boss driver at the defendant’s mines, who employed the plaintiff and furnished to him the mule to drive, that injured him, a number of questions were asked him by plaintiff against the objections of the defendant, which.were immaterial to the issue tried by the jury. The questions "were these: “Were you in the habit of telling the drivers as you put them to work driving this mule, that the mule was a rough mule and would, kick? When did you tell them?What did you tell Bud McCullv about this mule? Did you tell Ben Campbell when you put him to work that the mule was a kicking mule? Tell as near as you can what you told Campbell about the mule?” The witness-was permitted to answer each of these questions against the objection of the defendant and to -the last two questions the witness replied: “I told Campbell that the mule wats a rough one and would kick and for him» to watch him and not overload him and not give him any show for kicking. That was- about a month before I put plaintiff to work, and was at the mine at Belle Ellen.”

It appears from the testimony that it was an undisputed fact that the mule that injured the plaintiff was a kicking mule, and that his viciousness in this respect was known to this witness, long prior to the time he employed the plaintiff. Indeed, the witness Hudgins, the only witness examined by the defendant for the purpose of showing that he informed the plaintiff at the time he employed him that the mule would kick, testifies not only to his knowledge of the viciousness -of the animal, but the fact of its vicious disposition also.

The material and vital issue of fact made by this witness was that he informed the plaintiff wiien he employed Mm that the mule was a rough -and kicking mule. The plaintiff and his brother swore that this was not true. If the jury should have believed that Hudgins vras swearing to the truth on this vital point, this would! have entirely destroyed the plaintiff’s right to a verdict. It may be said, then, so far as the plaintiff’s case Avas involved, that it Avas of the utmost importance that the force of Hudgins’ testimony should be broken and its ■effect impaired in the minds of the jury in some Avay. In order to accomplish this purpose, the plaintiff on rebuttal introduced Campbell as a Avitness, AAdio testified, against the objection of the defendant, that Hudgins had never at any time told him that the mule aatuiIc! kick. This Avas clearly erroneous. The questions propounded to Hudgins set out above Avere collateral and irrelevant to the issues in the case. “And the rule is too Avell settled for discussion, both in practice and 'by authority, that ‘a Avitness cannot be cross-examined as to any fact, Avliich is collateral and irrelevant to the issues, merely for the purpose of contradicting him by other eAddence, if he should deny them, and thereby discredit his testimony. And if a question is put to the Avitness Aidiich is collateral or irrelevant to the issue, his answer cannot be .contradicted by the party Avho asked the question; but it is conclusive against him.’ ” — Hussey v. The State, 87 Ala. 133; Blakey v. Blakey, 33 Ala. 611; Ortez v. Jewett & Co., 23 Ala. 662.

Had Hudgins denied any knoAvledge of the disposition ■of the mule .to kick or had SAVorn that it Avas not a rough or kicking mule, then for the purpose of shoAving that he possessed such knoAvledge, it Avould doubtless haAre been competent on cross-examination to have asked him if he did not make the statement to others that it Avas a kicking mule. And indeed, for the purpose of showing liis knowledge of the vieious temperament of the animal, .any person to Avhom he had made the statement that it Avould kick, would be permitted to testify to such statement, and this, too, Avithout a predicate being laid as to the time, place, etc., Avhen he made the statement. In such a case, his statements would be original testimony. But this is not that case. And besides, here the plaintiff, after an admission by Hudgins of his knowledge and that he told Campbell that the mule would kick, proves by Campbell that he made no such statement to him. Obviously, the only purpose in introducing Carnpbell, as Ave 'have said, Avas to discredit Hudgins’ testimony before the jury. The 'cases cited in appellee’s brief have no application to the question here involved.

Charge No. 2 requested by the 'defendant should have «been given.

The gravamen of count Iavo of the complaint is that the defendant, AA'ell knoAving the vicious disposition of the mule, failed to Avarn or inform the plaintiff of said Adcious disposition. In order, therefore, «for the plaintiff to recover under .this count the evidence, must tend to show that his injury resulted from the failure of the •defendant to AArarn or inform him of the Adcious disposition of the animal. If he bad this information prior to and at the time of his injury, then it cannot be said that his injury Avas the result of the failure of the defendant to Avarn or inform him of that fact. A number • of Avitnesses testify to haAdng told him that the mule Avas Adcious. He testifies, himself, that Campbell said to him, in the morning before he Avas injured: “Be careful; keep your hand off that mule; if you don’t he Avill kill you.” He also testifies: “He (the mule) Avorked very Avell that morning, but Avlien driving along ‘he would stop and go to kicking.” So, according to his ■OAvn admission, he Avas not only informed of the Adcious disposition of the animal, but had actually seen a manifestation of it.

As the cause must be remanded for another tidal, Ave. will not revieAV the action of the court in refusing the ■motion of the defendant for a new trial.

Beversed and remanded.