68 So. 278 | Ala. | 1915
(1) For the purpose of qualifying a witness to testify as to the value of a mule, it is
(2) On the cross-examination of one Hatcher, a witness for plaintiff, defendant elicited the fact that the witness found the dead mule at a point nearer to the Western than to the Southern railroad track. After-wards he said: “I know who they say the tracks along there belong to; as a matter of fact, I don’t know whether the Western has got a track, nor whether the Southern has got one.” Whereupon defendant moved to exclude the witness’ former statement, because he had no knowledge that the Western had a track there. One who elicits a statement from a witness has no right to have it excluded because it is unfavorable to himself, and defendant’s motion was properly overruled on this ground, if no other.
The real question in the case is therefore presented by the refusal of the trial court to give for defendant the general affirmative charge as requested by it in writing.
(4) Appellant’s argument in. this behalf is: (1) That there was a fatal variance between the allegation of the complaint that the mitle was killed on or near the track of defendant company, and the proof that it was killed on or near the track of the Louisville & Nashville Railroad Company, and not on or near the defendant’s track at all; and (2) that the evidence showed, without material conflict, that the mule was killed by some locomotive running on the Louisville & Nashville track which did not belong to and was not operated by defendant, the Western Railway Company.
The evidence showed that the only two tracks on Sylvan street, where the mule was killed, belonged respectively to the Louisville & Nashville and the Southern Railroad, and not to the Western. But it showed also that, in entering the city on that street, the Western used the track of the Louisville & Nashville. The physical ownership of this track was not in any way material to the issues of the case, and we think the allegation of the complaint was sufficiently sustained by proof that the Western used the track for the operation of its engines and cars. Certainly, for all the purposes of this case, it was the track of the defendant.
(5) The only direct evidence that the mule was.killed by a locomotive is found in the testimony of a little negro girl, then nine years of age, that she saw an
So far as we can judge merely from this record, the jury ought to have found for defendant on the convincing weight of its evidence; but, in vieAv of the conflict noted, it seems clear that the case was properly submitted to the jury. Let the judgment be affirmed.
Affirmed