125 Ala. 593 | Ala. | 1899
Lead Opinion
The complaint contained eight counts ; hut upon three of them the court gave the affirmative charge for the defendant. The gravamen of the complaint in each of the remaining counts, was the alleged death of the plaintiff’s intestate, who was a passenger upon one of the defendant’s passenger trains, caused hy the negligence of the defendant. This negligence as alleged in the third count, is based on the failure of the defendant to have its track at or near the place of the derailment of the train, in a proper condition; as alleged in the fourth count, in having rotten or unsound cross-ties at the place where train was wrecked; in the fifth, the failure of defendant’s employes to securely spike or properly fasten one of the rails of 'the track, near the place of disaster; in the seventh, in having a worn or defective rail at the place where the wreck took place, and in the eighth, in the manner of the operation and management of the road.
Under the assignments of error which are insisted upon in argument, it is unnecessary to do more than state that the evidence offered in behalf of the plaintiff tended to support the allegations of negligence as alleged in each count of the complaint above set out, while that of the defendant tended to disprove them. There can not be, nor is there 'any controversy, that the evidence without conflict established a wreck or derailment of defendant’s train upon which the plaintiff’s intestate was a passenger, and that he received injuries from which he died the next day.
The first, second, third, fourth, fifth and sixth assignments of error are of a kindred nature and practically raise the same question. They involve the rulings of the court in refusing to allow the defendant to make proof of the age, physical and mental condition, earning capacity, occupation of the plaintiff’s testator and the amount of money contributed by him from Ms earnings to the support and maintenance of his wife and those dependent
It is insisted that no matter what the construction of the statute, that a defendant who is sought to be punished, has the right to introduce every fact which illustrates or tends to illustrate, the nature or degree of his offense. This proposition may 'be true. But what .has the age, physical and mental condition, earning capacity or occupation of the person killed by the negligence of the -defendant to do with the nature or degree of its offense? It cannot be that the negligence which resulted in the death of an aged person, is any the less negligent if the same act caused the death of a young person. So too the degree of negligence cannot be said to have been accelerated or diminished if the same act caused the death of a man having an occupation, and a
Under the authorities of Tanner v. L. & N. R. R. Co. 60 Ala. 621; Walker v. Walker, 34 Ala. 473, and Eureka Co. v. Bass, 81 Ala. 200, the questions propounded to witness Duffey, “That would have been a pretty bad track if it had been worn a half of an inch in some places wouldn’t it?” and “make it dangerous wouldn’t it?” which were allowed to be answered against the objection of defendant, were improper. See also Bemis v. Central Vermont Railway Co., 58 Vt. 636; Graham v. Penn R’y. Co., 139 Penn. St. 149; Penn Co. v. Mitchell, 124 Ind. 473; City of Chicago v. McGiven, 78 Ill. 349.
. Witness John introduced by the defendant, testified to being on the train at the time of its derailment when the plaintiff’s intestate was injured, and to the condition of the train, track, etc. after the wreck. On cross-examination he testified that he went over the track where the derailment took place two or three times a week, and that he rode on an annual pass; that he was superintendent and general manager of a company engaged in the mining of coal and had charge of its affairs at Belle Ellen; that the company were large miners .of coal. At this point in the cross-examination, the plaintiff’s attorney asked the witness: “And large shippers of coal over the Louisville & Nashville Railroad?” Defendant objected to the question because incompetent, illegal, irrelevant and immaterial. The court overruled the objection and the defendant excepted. Before the witness replied to the question, the plaintiff’s attorney then said to the witness, “I mean through you as superintendent?” The
In Carpenter v. The State, 98 Ala. 31, the lower, court sustained an objection by the State to the following question, asked by the defendant on cross-examination to show hostility of the witness to the defendant: “Didn’t you at one time when you were required to reduce the force of hands working under you, discharge him in preference to a colored man, then in your employ?” This court said: “There was no error here. If the question had been answered it would not have shown without more, any hostile feeling on the part of the witness towards the defendant. * * * Many considerations, such as skill, age, physical conditions, differences in wages to be paid, industry and faithfulness to duty, would control in such a selection without implying, necessarily, any prejudice against those discharged. If
The same principle was announced in the case of Polk v. The State, 62 Ala. 238. A majority of the court, however, are of the opinion that-there was no error in this respect.
Reversed and remanded.
Rehearing
On Application por Rehearing.
The only point presented in the application for rehearing is the one in which we 'held that the answers to the questions: “That would have been a pretty bad track had it been worn half an inch in some places, wouldn’t it?” “And make it dangerous, wouldn’t it?” were improper. Upon reconsideration it is our opinion that in this we committed an error. The answers to these questions were elicited upon a cross examination of a witness who had upon direct examination testified, “that the rails were in good -condition, that they were not worn but very little; that they were not worn enough to injure them in any way — it was not worn to hurt anything. I didn’t see anything there in that track that would have a tendency to make the cars get • off the track.” It was legitimate on cross-examination to rebut this testimony, if it be illegal, by illegal testimony. This point was -not insisted on in brief of counsel when the case was first-examined, and was overlooked in the preparation of the original opinion. Some of the judges are of the opinion that the evidence was proper anyway.
Affirmed.