Birmingham Ry., Light & Power Co. v. Lavender

• Decision Date: 17 December 1908
• Citation: 158 Ala. 434,47 So. 1026
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. LAVENDER.
• Court: Alabama Supreme Court

47 So. 1026

158 Ala. 434

BIRMINGHAM RY., LIGHT & POWER CO. v. LAVENDER.

Supreme Court of Alabama

December 17, 1908

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by L. T. Lavender against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff, defendant appealed. Affirmed.

The evidence for plaintiff tended to show that on November 26 1904, plaintiff and his wife went to College Station, in East Lake, on defendant's land, taking an electric car to Birmingham, and that they arrived at the station when the car was about a block from them; that the car stopped at the usual stopping place, and that plaintiff was in the act of assisting his wife to get on the rear end of the front car while it was standing, and on the right-hand side of the car when the car was started with a jerk, and plaintiff's wife, having her left hand holding the railing and with one foot on the car step, was thrown down on the ground, falling parallel to the track, and her right side was struck by the second or trailer car, from which she suffered injuries and bruises to her side and body, from which she was confined to her bed for 6 weeks, and which resulted in hastening tuberculosis, from which she died in about 13 months after her injury.

In reference to the attempt to lay a predicate, the bill of exceptions recites: "During the cross-examination of plaintiff in rebuttal, he was asked by defendant's attorney if he had not stated, in his written answer under oath to the interrogatories propounded to him by the defendant and filed in the case, that his wife was injured in alighting from the car. Defendant offered to submit the answers to witness before he was required to answer, and stated that the purpose of the question was to lay a predicate to contradict plaintiff. Defendant afterwards offered to introduce in evidence that part of the answers of plaintiff to the interrogatories propounded to him, as follows: 'My wife and I were waiting for the car, and the car rolled up, and just as my wife was in the act of alighting.' The attorneys stated that that portion was offered for the purpose of contradicting plaintiff. Objection was sustained, but the court offered to admit the portion offered, if the whole answers were introduced by defendant but counsel for defendant declined to introduce any part of the answer, except the part hereinbefore set out, and defendant objected and...