Birmingham Ry. & Elec. Co. v. Mason

• Citation: 144 Ala. 387,39 So. 590
• Court: Supreme Court of Alabama
• Decision Date: 29 November 1905
• Parties: BIRMINGHAM RY. & ELECTRIC CO. v. MASON.

39 So. 590

144 Ala. 387

BIRMINGHAM RY. & ELECTRIC CO. v. MASON.

Supreme Court of Alabama

November 29, 1905

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by James Mason against the Birmingham Railway & Electric Company for damages for assault and battery committed by defendant's conductor. From a judgment for plaintiff defendant appeals. Affirmed.

Charge requested by the plaintiff, and given by the court, and assigned as error, was as follows: "(1) Even though it be the duty of the conductor to keep James Mason out of that part of the car for white people, yet it was the duty of the conductor not to use any more force than was necessary for that purpose, and, if no force was necessary, then it was the duty of the conductor not to use any force to injure plaintiff." The charges requested by the defendant and refused by the court were the general affirmative charge as to both counts, asked separately, and charges singling out testimony of different witnesses. There was motion for new trial, and the refusal of the court to grant it to defendant is also assigned as error.

Walker Tillman, Campbell & Morrow, for appellant.

Bowman Harsh & Beddow, for appellee.

DENSON J.

On the former appeal in this case it was held that both counts of the complaint were subject to the demurrer interposed to them. Birmingham Ry. & Elec. Co. v. Mason, 137 Ala 342, 34 So. 207. On remandment of the cause plaintiff amended the first count of the complaint to meet the demurrer and further amended the complaint by striking out the second count. The defendant refiled the demurrer to the complaint and the court overruled it. The first assignment of error challenges the correctness of the court's ruling on the demurrer, but the assignment is waived in the brief of counsel.

The plaintiff seeks to recover damages alleged to have occurred to him as the result of an assault and battery alleged to have been committed on him by defendant's conductor, acting within the line and scope of his authority, and while plaintiff was being carried as a passenger on one of defendant's cars. The evidence for the plaintiff tended to prove the allegations of the complaint.

W. S. Finley, as a witness for the defendant, testified that he was the conductor in charge of the car on which the plaintiff was a passenger at the time he claimed he was assaulted. His testimony tended to show that no assault was made on the plaintiff, and that he did not grab the plaintiff in the throat and choke him and shove him back from the car, as was testified to by the plaintiff. On cross-examination he testified that J. D. Phillips was on his train that evening learning the route. "In cross-examination, an adverse party is usually allowed great latitude of inquiry, limited only by the sound discretion of the court, with a view to test the memory, the purity of principle, the skill, accuracy, and judgment of the witness, and the consistency of his answers with each other and with his present testimony, to enable the jury to judge of the degree of confidence they may safely place in his testimony." 2 Wigmore on Evidence, §§ 944, 945, 995. Considering the cross-examination of the witness Finley in its entirety, we think it falls within the scope of the rule as above stated, and that the court committed no error in overruling the objections of defendant to the questions propounded by the plaintiff to the witness on cross-examination. Cambell's Case, 23 Ala. 44; Stoudenmire v. Williamson, 29 Ala. 558; Thomason v. Dill, 30 Ala. 444; Seale v. Chambliss, 35 Ala. 19; Ingram's Case, 67 Ala. 67; Noblin's Case, 100 Ala. 13, 14 So. 767; Tobias v. Treist, 103 Ala. 664, 15 So. 914; Rhodes Furniture Co. v. Weeden, 108 Ala. 252, 19 So. 318; Sou. Ry. Co. v. Brantley, 132 Ala. 655, 32 So. 300; Hathaway v. Crocker, 7 Metc. 266; Langley v. Wadsworth, 99 N.Y. 63, 1 N.E. 106; 2 Wigmore on Evidence, § 944.

Nor did the court commit error in overruling defendant's objection to the question propounded by plaintiff to witness Finley with reference to what Finley said to J. D. Phillips between East Highlands and Birmingham. The question properly laid a predicate for proof of a statement which, if made by the witness, was contradictory to the witness' evidence. N. A. R. Co. v. Mansell, 138 Ala. 562, 36 So. 459. But if there had been error in allowing the question, the error would have been cured by Phillips' evidence. Phillips, when called by plaintiff to prove the contradictory statement, testified that Finley made no such statement as was insisted upon by the plaintiff.

The written charge given at the request of the plaintiff asserts a correct proposition of law. B. Ry. & Elec. Co. v. Baird, 130 Ala. 334, 30 So. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43. The insistence of the defendant with respect to this charge is that it is argumentative and abstract. Granting that the insistence is correct, it does not follow that the giving of the charge was reversible error. Karr's Case, 106 Ala. 1, 17 So. 328; A. G. S. R. Co. v. Frazier, 93 Ala. 45, 9 So. 303, 30 Am. St. Rep. 28; Russell v. Irwin, 38 Ala. 44; 2 Mayfield's Dig. p. 565, §§ 67, 73. Charges 4 and 5 requested by the defendant gave undue prominence to the evidence of the witness named in them, and for this reason they were properly refused. Steed v. Knowles, 97 Ala. 574, 12 So. 75; Sou. Ry. Co. v. Reaves, 129 Ala. 457, 29 So. 594; Sou. Bell Co. v. Mayo, 134 Ala. 641, 33 So. 16. Errors assigned, based upon the refusal of the court to give other charges requested by the defendant, are not insisted on in brief of counsel.

One ground of the motion for a new trial was that the bill of exceptions which was reserved on a former trial of the case was inadvertently handed to the jury on their retirement and that the jury had the bill with them in their deliberations. The proof offered by the defendant to support this ground of the motion does not show who handed the papers to the jury, nor was there any insistence that the possession by the jury of the bill of exceptions was the result of misconduct on the part of any one. The extent to which the evidence of the defendant went was to show that the jury had the bill of exceptions in the jury room. The rule as laid down in the Encyclopedia of Pleading & Practice (volume 12, p. 603) is that, "where papers which should not...