Richmond & Danville Railroad v. Jones

92 Ala. 218 | Ala. | 1890

COLEMAN, J.

The suit was brought by appellee to recover damages for personal injury. For ’defense to the action, by way of special plea, the defendant set up Rule No. 23, which will be found in the statement of the facts of the case. To this plea a demurrer was sustained. In the case of the Louisville & Nashville R. R. v. Orr, 91 Ala. 548; 8 So. Rep. 360, it is declared that “Railroads can not stipulate for immunity from liability for their own wrongful negligence. A rule which imposes upon an employe to look after and be responsible-for his own safety contravenes the law itself, which fixes the-liability of railroads for negligence, causing injury or death to their employees.” The demurrer Avas properly sustained.

It is the duty of railroads to keep themselves reasonably abreast with improved methods so as to lessen the danger attendant on the service, and while they are not required to adopt ¿very new invention, it is their duty to adopt such as are in ordinary use by prudently conducted roads engaged in like business, and surrounded by like circumstances.—Ga. Pac. Railway Co. v. Propst, 83 Ala. 518. There have been such advancements in science, for the control of steam, and improvements in the machinery and appliances used by railroads, for the better security of life, limb and property, itAvould be inexcusable, to continue the use of old methods, machinery and appliances known to be attended AAdth more or less danger, when the danger could be reasonably avoided by the adoption of the newer and AAdiich are in general used by well regulated railroads. Not that it is required of them to adopt eAery new invention useful in the business, although it may serve to lessen danger, but it is their duty to discontinue old methods which are insecure, and to adopt such improvements and advancements as are in ordinary use by prudently conducted roads engaged in like business and surrounded by like circumstances.—L. & N. Railway Co. v. Allen, 78 Ala. 494. Applying this principle in the case of the Ca. Pac. Railway Co. v. Propst, 83 Ala. 526, the court held that “if the drawheads and bumpers used by defendant Avere such as were employed by many well conducted roads, this would repel all imputation of negligence founded on their mere structure, although other roads, even a majority of them, adopted a different pattern.” Witnesses Avho have sufficient knowledge of the subject may testify to the general rules of railroads on the subject. The same general principle is declared in the case of L. & N. Railway Co. v. Hall, 87 Ala. 708. Under these rules, we think it Avas proper to enquire, whether the drawhead used by defendant, when the injury occurred, Avas such as Avere usually used on well regulated railroads. The witnesses were shown to be experts, and were competent to give such testimony.

It may be laid down generally that objections to evidence, which do not particularize or define the grounds of objection, may be overruled. The court is not bound to cast about for the grounds upon which, in the mind of counsel, they are rested.—Dryer v. Lewis, 57 Ala. 551; Steele v. Tutwiler, Ib. 113 ; Tuscaloosa Cotton Seed Co. v. Perry, 85 Ala. 164. The rule is equally well established, that a general objection to evidence, a part of Avhich is legal, mav be overruled.—Fonville v. State, 91 Ala. 39; Giddens v. Bolling, infra; Warren v. Wagner, 75 Ala. 188; Chambers v. Ringstaff, 69 Ala. 140. Most of the objections to the evidence come under one or the other of these principles, and there was no available error in overruling them.

Defendant’s counsel, having the paper, Exhibit A, in his hands, handed it to plaintiff, while being interrogated on cross examination as a witness, and asked him if he signed it. Plaintiff’s counsel requested to see the paper, which request defendant’s counsel refused, saying he had not offered it in evidence. The court stated, that it should be shown to plaintiff’s counsel when the paper was offered in evidence. Plaintiff then answered that it was his signature. The defendant ■afterwards offered the paper in evidence, to which the plaintiff objected on the ground, that there was an attesting witness, and the execution of the paper had not been properly proven. The court sustained the objection, and the defendant excepted.

Opposing council have the right to object to improper questions to witnesses, and the rules of practice require them to specify the grounds of objection. Any advantage taken, by which a party is deprived of the exercise of this right in the trial of a case without neglect or fault on his part, should not be used to his prejudice. If defendant -did not purpose to introduce the paper in evidence, the question to the witness was improper. If it was the. intention to offer it in evidence, then it should have been submitted to opposing counsel, so that if he wished to object, the objection could be made in proper form.

The ruling of the court, sustaining the objection to the introduction of the paper, is supported also on other principles. In the case of Ellerson v. The State, 69 Ala. 3, after stating the general rule, that the attesting witness should be called to prove the execution of an instrument, declares that the rule extends to every private writing, which the parties may have chosen to cause to be attested. The witness is considered as the person selected and referred to for the purpose of proving the fact of execution, and the facts and circumstances attending it. Citing Greenl. Ev., § 569.

So long as the evidence of the subscribing witness can be produced, it is the best, the primary and only evidence of execution. The admissions or declarations of the parties themselves to the instrument (not made in open court, or in writing, for the the purpose of a trial when they are the parties litigant) are not admissible for this purpose—Russell v. Walker, 73 Ala. 317.

It is contended that Exhibit A was not offered in evidence as a contract binding upon plaintiff, but merely to establish the existence of Rule 20, and notice to plaintiff, and that for this purpose it was admissible. The proposition contended for necessarily must be, that the rule being incorporated in the contract as a part of it, its existence and materiality as evidence against the plaintiff may be established by offering in evidence the contract, without legal proof of its execution. The reasoning is not sound. To establish the existence of the rule, and notice thereof, the defendant was forced to rely upon an unproven contract. If the contract is excluded, because its execution is not proven, it can not be said that admissions which alone appear in the contract have been proven. The admission having been improperly obtained, and the execution of the paper not proven, it was not admissible for any purpose.

There is evidence that the running board upon which the evidence tends to show the plaintiff was standing when injured, “was put there for the switchman to ride on.” If this evidence be true, and it was placed there to assist switchmen in the performance of their duties, and they were expected to use it lor that purpose, and the plaintiff, in the discharge of his duty as a switchman, was upon the running board, Rule No. 20 could not be invoked to defeat plaintiff’s action, so far as the rule prohibits switchmen from going between the cars to couple or uncouple them..—Hissong v. Richmond & Danville Railroad Co., 91 Ala. 514; Highland Ave. Railroad Co. v. Walters, 91 Ala. 435; 8 So. Rep. 357.

The evidence tended to show that it was the duty of firemen to receive signals from switchmen, and transmit them to the engineer. If the injury to plaintiff was caused by negligence of the fireman in transmitting the signals to the engineer, given to him for that purpose by the plaintiff in the discharge of his duty as a switchman, such injury is clearly within the provision of the employer’s act.

There was no error in the charges given by the court. Those asked for by the defendant, which were refused, are not in accord with the principles of law herein declared, and were properly refused.

Affirmed.