56 So. 731 | Ala. | 1911
It is averred in the complaint that plaintiff was injured while crossing a public street by being struck by a street car operated by the appellant corporation. In count 1 plaintiff concludes by averring that “her said injuries were caused by the negligence of the defendant in the negligent manner in which it ran or operated its car.” This count is criticised as not containing a categorical averment of negligence. Mere general averments of negligence in cases of this character have' been so often sustained that the principle involved is not open to question. It is curious to observe that the very effort to encourage and uphold the utmost simplicity of averment has led to some confusion; the result being due perhaps to an effort in some cases to push the practice beyond all reason. However, in this case, we are unable to find reversible error in the rulings on demurrer. Substantially this form of averment, though in strictness it is inferential, has had indorsement in cases heretofore. — Birmingham Ry., L. & P. Co. v. Adams, 146 Ala. 267, 40 South. 385, 119 Am. St. Rep. 27; L. & N. R. R. Co. v. Church, 155 Ala. 329, 46 South. 457, 130 Am. St. Rep. 29; Birmingham Ry., L. & P. Co. v. Haggard, 155 Ala. 343, 46 South. 519. There has been no dissent from these precedents as furnishing a sensible and practical form of averment in ordinary cases of this character. The considerations which influenced the decision in Birmingham Ry., L. & P. Co. v. Weathers, 164 Ala. 23, 51 South. 303, find no field for operation in the case at bar.
The rule has been frequently held to be that a plea of the plaintiff’s contributory negligence must set forth the facts constituting the negligence, and that mere conclusions will not suffice. In its second plea “defendant says that plaintiff was herself guilty of negligence which proximately contributed to her alleged injuries, and that her said negligence consisted, in this: Plaintiff negligently went upon, or dangerously near, or remained upon, or dangerously near, the railway track of defendant in front of and in dangerous proximity to a car then and there approaching on said track.” Obviously this plea was no answer to the charge of wanton injury contained in counts 4 and 6. Count 2 charged that defendant’s motorman failed to exercise due care after he discovered plaintiff’s peril, a charge of subsequent negligence as it is commonly termed. Plaintiff’s negligence in going upon the track was no
Plaintiff claimed in her complaint that she has been permanently injured and disabled, and that her injuries rendered her less able to earn a livelihood. Before the trial she had answered interrogatories propounded to her by the defendant under the statute for the examination of adverse parties. On cross-examination at the trial, testifying as a witness in her own behalf, she deposed that her salary prior to her injury had been $100; a month, whereupon defendant asked her this question: “Isn’t it a fact, Mrs. Bush, that your salary was $75 a month, and didn’t you so state in your answers when you answered the interrogatoifies?” The court sustained the plaintiff’s general objection to this question,, and the defendant excepted. Counsel for appellee concede that an inquiry as to the amount of her salary before her injury, omitting the remainder of the question,, would have been proper, and justifies the ruling below on the ground that her answers to the interrogatories were the best evidence of what she then said. Appellant relies upon the recent case of Grasselli Chemical Co. v. Davis, 166 Ala. 477, 25 South. 35.
In Gunter v. State, 83 Ala. 96, 3 South. 600, our predecessors held that the trial court had properly refused to permit a witness to be interrogated on cross-examination as to particular statements made before a committing magistrate on preliminary hearing, such statements having been reduced to writing, and being then in court in the possession of counsel, but not
In Southern Railway Co. v. Hubbard, 116 Ala. 387, 22 South. 541, the court pretermitted as unnecessary in that case a decision of the question whether a party, having taken the deposition of his adversary under the statute, may use in evidence specific portions of the answer, not as proof of the facts therein stated (for it had been decided that if he offers a part of an answer in evidence he thereby makes the whole evidence), but for the purpose of impeaching his adversary as a witness by showing that he has' made contradictory statements. The ruling in that case was put upon the specific ground that, if such use of a part of the answer were permissible, yet no predicate had been laid nor had the
In Birmingham Railway Co. v. Oden, 164 Ala. 1, 51 South. 240, it was said that “it would be a perversion of the purposes of the statute to permit the rule of construction placed upon it (referring to the staute for the examination of adversary parties and the decisions holding that, if the party taking the answer offers a part, he makes the whole evidence) to be evaded, and a part only of the answer introduced, upon the suggestion of laying a predicate for impeachment.”
In the Grasselli Case, supra, it was said that merely showing the answer to the witness would not be introducing it in evidence, and the action of the trial court in refusing to permit the defendant to lay a predicate for impeachment, by asking the plaintiff on cross-examination whether he had not made .contradictory statements when examined under the statute, was held for error. The effect of this was to decide that a party who has taken the deposition of his adversary under the statute may use a part of it for the single specific purpose of impeachment without making the whole evidence, and we think this a sound rule. We think, also, that, when a party so uses a part of his adversary’s answer, the adversary party may use such other parts of his answer as may serve to explain the contradiction. It is our further opinion that in such cases the predicate for impeachment must be laid in the manner prescribed in Gunter v. State, supra, and the other cases in the same line.
Our conclusion in the case at bar is that no error appears for the reason that the purpose to impeach was not stated to the court, and because, as for anything appearing in the bill of exceptions, the appellant, when laying its predicate, if that was its purpose, did not show, nor offer to show, his deposition to the witness.
The judgment must be affirmed.
Affirmed.