Horton v. Louisville & Nashville R. R., 49 So. 423

Horton v. Louisville & Nashville R. R.

49 So. 423 | Ala. | 1909

DOWDELL, C. J.

The preliminary motion of appellant, here made, to expunge certain erasures from the bill of exceptions as contained in the record, cannot be entertained. It clearly appears that the said erasures *111were made by the presiding judge, who signed the bill of exceptions, and before he signed the same as such. If the bill of exceptions as presented by the appellant to the judge for signing by him was a true and correct bill, and the judge failed or refused to sign the same as presented, the appellant’s remedy, under the statute, was to establish his bill in this court on proper proceedings under the rules.

The assignments of error on the record relate to rulings of the court on the introduction of evidence and to instructions to the jury. There was no error in overruling the objection to the question by the defendant, on the cross-examination of the witness Cunningham: Do you know what finally became of the cotton?” In the first place, the objection was general; and, in the second, the evidence sought to be elicited was relevant and material. It was shown that a part of the cotton, for the destruction of which damages were claimed in the complaint, was only partially damaged.

The witness Young testified that he had been a locomotive engineer for about 15 years, and was in charge of the locomotive alleged to have caused the damage in question. He was then asked: “Do you know how to properly handle, manage, and control an engine?” A general objection was made by the plaintiff to this question, which was overruled by the court. There was no error in this ruling. The objection was general. The evidence sought was, under the issues in the case, relevant and material. Counsel for appellant cite the case of B. Ry., L. & P. Co. v. Martin, 148 Ala. 8, 42 South. 618, as opposed to the ruling of the trial court in this case. The questions in the two cases are different. The question here was as to whether the witness knew how to manage an engine, qualifying him to speak as an expert, and upon which the plaintiff might, on a cross-ex-*112animation, fully test the knowledge of the witness inquired about. In the case cited the question was whether the witness did carefully control and manage the engine at the time of the accident and it was properly ruled that he should state what he did and how he handled the engine, as the careful handling of'the engine at the time was one of the questions in the case for the jury. The objection to the question, “Will a properly equipped engine sometimes emit sufficient sparks to set fire to cotton within five or six feet of the track?” was general. The evidence under the issues was relevant, and the trial court in such case will not be put in error for overruling a general objection. — White v. Craft, 91 Ala. 139, 8 South. 420; Oil Co. v. Perry, 85 Ala. 158, 4 South. 635.

The ground of objection to the question asked the witness Brooks as to small chips being emitted from the engine in a state of ignition was specific, and that was that there was no evidence as to little burning chips being emitted from the engine. There was, however, evidence tending to show such a thing, and from which the jury might have inferred the same. On the ground of the objection stated to the question, no reversible terror was committed in overruling the same.

The fire occurred on the 27th of April, and it was permissible and competent in evidence to show that the locomotive in question had been examined on the 10th of April, prior to the fire, by an expert machinist, and that the locomotive was at that time in proper condition, properly equipped, etc.; the proper condition and equipment of the engine being a question in the case. The examination of the locomotive was sufficiently near in point of time to the injury to render it a competent circumstance to go to the jury upon the question of the condition of the engine at the time of the injury.

*113There is no merit in any of the other questions reserved upon the introduction of evidence. The questions asked the witness Waller, when recalled as a witness in rebuttal, did not call for strictly rebuttal evidence, and it was within the discretion of the trial court as to whether it would permit the questions.

Of the assignments of error based on charges given the jury, only those relating to charges B2, D, G, and 22, are insisted on in argument. There is no such charge as 22 to be found in the record. The charge designated “B2” is the one which was erased and stricken out of the bill of exceptions by the presiding judge, before signing the bill, and hence it is not contained in the bill of exceptions that becomes a part of the record in this case.

Charge D, given at the request of the defendant, should have been refused. When it was shown by the evidence that the engine in question was emitting sparks in dangerous and unusual size and quantity, the burden of proof was thereby placed on the defendant to show proper construction and equipment of the engine, and that it was in good repair and prudently handled and controlled. — L. & N. R. R. Co. v. Reese, 85 Ala. 502, 5 South. 283, 7 Am. St. Rep. 66; L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 255, 28 South. 438, 50 L. R. A. 620. The charge was misleading in its tendency as to this burden of proof; but while the misleading tendency, alone and of itself, would not constitute reversible error in the giving of it, the charge instructs a verdict for the defendant notwithstanding the engine was defective. In the last clause of charge D the omission of the word “not,” before the word “defective,” leaves the charge to affirm a non-liability of the defendant, notwithstanding the engine “was defective.”

The defendant, in the operation of its steam locomotives over its road, in order to acquit itself from liabil*114ity for damages done to the property of others by fire caused from the emission of sparks from the locomotive, must not only show that its locomotive was of proper construction and in good repair, and that the same was properly managed and controlled, but also that it was properly equipped with suitable appliances for arresting the emission of sparks.-— Railroad Co. v. Reese, supra; Railroad Co. v. Marbury Limber Co., supra, and cases following those cases. Charge G, given at the request of the defendant, and which instructed a verdict for the defendant- on the facts hypothesized, ignored the duty of the defendant company to equip its locomotive with a suitable spark arrester, and for this reason, if for no other, the charge was faulty and should have been refused. An engine may be properly constructed without a spaírk arrester, and hence that expression, as used in the given charge, cannot be held of necessity to include suitable appliances for arresting sparks.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Simpson, Denson, and Mayfield, JJ., concur.