Birmingham Union Ry. Co. v. Alexander

• Decision Date: 17 June 1891
• Citation: 9 So. 525,93 Ala. 133
• Parties: BIRMINGHAM UNION RY. CO. v. ALEXANDER.
• Court: Alabama Supreme Court

9 So. 525

93 Ala. 133

BIRMINGHAM UNION RY. CO. v. ALEXANDER.

Supreme Court of Alabama

June 17, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This action was brought by the appellee. W. S. Alexander, against the appellant corporation, and sought to recover damages for personal injuries alleged to have been sustained on account of the negligence of the defendant. The complaint contained three counts. The first count alleges that, while driving a beer wagon across Fourteenth street and First avenue, the plaintiff was thrown from said wagon by reason of its striking the rail of defendant's said car line, and was badly injured. The count further averred that said injury was caused by the iron rails of the appellant's said railway at that point, which were carelessly, negligently wrongfully, and unlawfully kept and maintained, and were not properly ballasted and surfaced, and because said railway was in bad repair, and not in such a condition as to admit of the unobstructed passage of vehicles across said street. The second count relies upon a contract which is alleged to have been made between said railway company and the city authorities, whereby the defendant agreed to keep its said railway properly surfaced, and in good repair and condition so as to admit of the unobstructed passage of vehicles across said street, and the count alleges that the defendant's railway was not so kept as required by the contract, on account of the negligence of the defendant. The third count relies on the ordinance of the city, whereby said railway company was required to conform to the grade of the street in laying its ties and rails so as not to hinder the free passage of vehicles; and it is averred that the defendant failed to comply with said ordinance, and carelessly and negligently failed to keep its said track properly ballasted and surfaced. The defendant filed three pleas; the first two being the general issue, and the third setting up contributory negligence on the part of the plaintiff. The undisputed evidence showed that while the plaintiff was driving a beer wagon on June 23, 1889, and while crossing Fourteenth street, where the defendant railway was laid within the corporate limits of the city of Birmingham, he was thrown out of his wagon, and was injured, as is alleged in the complaint, by having his arm broken. There was further evidence tending to show that the track at the point where the accident occurred had "stringers" at some places, and had no stringers at other places; that at that point the track measured 2 1/8 inches above the grade of the street some months after the accident occurred; and also that the plaintiff was a careful driver. The contract between the city and the defendant was introduced in evidence; and it required, among other things, that the track between the rails, and for 18 inches outside of the rails, be kept well ballasted with slag or other suitable material, so that the inside of the rails would not show a greater projection than 1 1/4 inches at any point above the surface of the track, and that the defendant should keep stringers on the outside of the rails. The ordinance of the city was also introduced in evidence, which required, among other things, that said railway track should conform directly to the grade of the street, and as to laying its ties and rails, so as not to hinder the free passage of vehicles. The testimony for the defendant tended to show that at the point of the accident in June the rails of its track were about on a level with the surface of the street, and were well ballasted and surfaced that there were stringers on the outside of the rails along said track; and that the rails were not at that time elevated above the level of the track. The defendant also introduced in evidence witnesses who testified that they passed over the said track of the defendant shortly before the accident occurred during the month of June, and that the track was in good repair, and in such condition as not to hinder the free passage of vehicles. Upon the introduction of all the evidence, the plaintiff requested, among others, the following written charge: "If the jury find that the rail or rails of the defendant's track was above the surface of the ground, and in violation of a municipal ordinance of the city of Birmingham, this, then, would be culpable negligence on the part of the defendant, and plaintiff would have the right to recover, provided his injury resulted proximately from the defect, and provided he was not guilty of negligence which proximately contributed to the injury." The defendant duly excepted to the court's giving this charge, and reserved an exception to the court's refusal to give the general charge in its behalf. There was judgment for the plaintiff, and the defendant brings this appeal, and assigns the various rulings of the lower court as error.

Hewitt, Walker & Porter, for appellant.

Taliaferro & Houghton and Whitaker & Whitaker, for appellee.

WALKER J.

The defendant filed cross-interrogatories to the witness Biggins without making any objection to the sufficiency of the preliminary affidavit required by section 2802 of the Code. Before the trial was entered upon, but after the witness had been examined on the interrogatories, the defendant moved to suppress the deposition on the ground that said affidavit did not show or set forth that the witness is or was material. This motion was properly overruled. The word "important" was used in the affidavit instead of the word "material." It would seem that the meaning of the latter word is included in the former. It is unnecessary, however, to pass upon this question, because the defendant waived the right to raise it by filing cross-interrogatories without urging any objection to the sufficiency of the affidavit. The crossing of the interrogatories, without objection to the affidavit, amounted to an admission of plaintiff's right to take the deposition. The defendant could not thus experiment with a...