Buye v. Alabama Marble Quarries

75 So. 9 | Ala. | 1917

•SOMERVILLE, J.

(1, 2) The witness Scott, being a stockholder of the defendant corporation, was pecuniarily interested in the result of the suit, and was not a competent witness as to any conversation between himself and the intestate.—M. & W. Plank Road Co. v. Webb, 27 Ala. 618; Wynn, Adm’r, v. Tallapoosa County Bank, 168 Ala. 469, 504, 53 South. 228. A conversation between two persons is a transaction by each with the other, within the meaning of the statute (Code, § 4007), whether the actual talking be done by both or only by one.

(3) We think it is clear that Scott was. improperly allowed to testify to the statements he made to the intestate. It is insisted, however, for defendant that, inasmuch as two other witnesses had already testified to the undisputed fact that Scott warned all the men, including the intestate, to keep away from the pile of blocks, Scott’s testimony on this subject was only cumulative, and the error of its admission should not work a reversal of the judgment.

But there is a substantial difference between a mere general instruction to all the men to keep away from the pile and a specific personal instruction to the intestate to keep away, with the added warning “that, if anything should hit those blocks, it would fall on him.”

On the vital issue of contributory negligence as made by the special pleas, the sharp personal warning to the intestate of the danger to him, if anything should strike the blocks, must have added very largely to the weight and effect of the merely general warning to all the men to keep away, and must have emphasized the culpability of the intestate in the estimation of the jury. To such a case as this we do not feel justified in the application of rule 45 (61 South, ix) to the avoidance of a reversal.

For the error noted, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.