Mitchell Square Bale Ginning Co. v. Grant

143 Ala. 194 | Ala. | 1904

DOWDELL, J.

The complaint in this case contained four counts, the first two being on the common counts, and the 3rd and 4th, on a special contract. To the first and second counts the general issue was pleaded and special pleas 2, 3 and 4 were filed to the 3rd and 4th counts.

A demurrer interposed by the plaintiff was sustained to special plea number 2, and on this ruling of the court is based the first assignment of error. This plea, was defective, for the reason pointed out in the demurrer, in the omission to set out the facts constituting the alleged failure by the plaintiff “To perform his duties,” and also, in the omission to set out the facts constituting the alleged “Negligence,” etc., of the plaintiff. These averments were but the statements of the pleader’s conclusions.

The second assignment of error relates to the ruling of the cqurt on the evidence. The plaintiff, who was examined as a witness in his own behalf, was asked by the'defendant on cross-examination, the following question ; “Did you fail to do anything that a prudent engineer should have done to .prevent the accident?” The accident referred to was the bursting of a “Tee” of the steam pipe, which connected the boiler with the engine. It was specifically alleged in defendant’s plea, that this accident was due to the failure of the plaintiff to open and keep open the drain pipes, and this was denied by the plaintiff. This being the issue as made by the pleading, any other failure on the part of the plaintiff to do anything that a “Prudent engineer should have done to prevent the accident,” other than liiis alleged failure to open and keep open the drain pipes, called for evidence that was immaterial, and the court committed no reversible error in sustaining the objection to- the question. It is true that greater latitude is allowed upon the cross-examination of a witness than upon the direct,’and it iis permissible even to eroels-examine the witness as’ to matters not in issue, when done for the purpose of testing the memory of the Avitness or his sincerity.’ There was nothing in the question asked to indicate a purpose of testing the memory or sincerity of the witness, and, even if such had been the. purpose, its allowance would have been a matter of discretion Avith the trial court.

“The right to cross-examine is absolute, but the latitude and extent of it is largely discretionary with the trial court, and Avill not be revieAved unless clearly abused.” — 4 Mayfield’s Dig., page 1129 § 75.

The third, fourth, fifth and sixth assignments of error, also, relate to rulings by the trial court on evidence. There Avas no plea of payment in the case, and consequently the question asked the Avitness Crowell, to Avhich am objection was sustained, called, for evidence that was impertinent to the issues.

The question asked the witness, J. F. Tucker, to which an objection was sustained, called for an opinion of the witness, and conceding that this Avitness Avas shoAvn to be an expert, no facts Avere hypothesized on which to predicate the question calling for opinion. • The Avitness Avas simply asked, “What in your opinion Avas the cause of the bursting of the tee?” This did not necessarily call for an opinion of the Avitness based) upon his knowledge as an expert, since it might liaAto been answered by the expression of an opinion based upon what the witness had heard some other person say.

The contract the Avitness Crowell had with the defendant was wholly irrelevant to the issues, and the court properly sustained the objection to the question to this witness, calling for what he told the plaintiff were the terms of the witness’s contract with the defendant.

. The general issue was pleaded to all of the counts. On the facts hypothesized in the written charge requested by the defendant, the laiv was correctly stated, and. the trial court erred in its refusal. — Loveman, Joseph & Loeb v. Brown, 138 Ala. 608; Straus v. Meertief, 64 Ala. 299; Bass Furnace Co. v. Glasscock, 82 Ala. 452; Jonas v. Field, 83 Ala. 445; Troy Fertilizer Co. v. Logan, 90 Ala. 325.

For the error pointed out the judgment must be reversed, and the cause remanded:

Reversed and remanded.

McClellan, C. J., Tyson and Densón, J.J., concurring.