Central of Georgia Ry. Co. v. Wilson

Decision Date20 January 1927
Docket Number4 Div. 275
PartiesCENTRAL OF GEORGIA RY. CO. v. WILSON.
CourtAlabama Supreme Court

Rehearing Denied March 31, 1927

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Action by John D. Wilson against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

An instruction which singles out or gives undue prominence to particular evidence or facts is erroneous.

Defendant's witness Babb, an expert boiler inspector testified that the spark arrester in the engine involved in this case was in good condition and, as far as he knew, was of the kind and character used by standard railroads; that the said engine being equipped with the spark arrester, sparks of unusual size and in unusual quantities could not be emitted through the netting of the arrester with it in good condition. On cross-examination he was asked by plaintiff, over defendant's objection:

"I would ask if it is not a fact that you have known engines of the Central of Georgia Railway Company equipped just as this one was, time after time, to emit sparks in such quantities and of such size as to set fire to adjoining property?"

The witness answered:

"According to my knowledge and experience, I say no."

The following requested charges were refused to the defendant:

"(2) The court further charges the jury that if the defendant company had its engine equipped with such appliances and contrivances as are in practical use by standard railroad companies, and the engineer in charge of said engine was properly driving or operating the same while traveling along the defendant's right of way, the plaintiff cannot recover in this action, unless he proves to the reasonable satisfaction of the jury by common (competent) evidence that at the time said engine drawing said train passed the point of location of the burned property, it was emitting live sparks of unusual size and in unusual numbers and that from said sparks the fire was communicated to and destroyed plaintiff's property, and unless the plaintiff so reasonably satisfies you from the evidence, your verdict must be for the defendant.
"(3) The court further charges the jury that if the train in question passed the point of location of the burned property at or about 9 o'clock at night and the fire in question did not occur until at or about 2 o'clock in the morning, after and during an intermittent rain, the jury may look to the intervening space of practically five hours from the time said train passed and said fire occurred as disclosed by all the evidence in this case, to determine whether said property was destroyed by sparks of fire set out from the defendant's engine; and if the defendant's train was operated without negligence by the engineer in charge, and such engine was equipped with such appliance and contrivances as are in practical use by well-regulated railroad companies; and if the proved evidence in the case does not reasonably satisfy you that said fire was communicated from said engine to the property of the plaintiff, as the result of negligence of the defendant's engineer, and thereby destroyed the same--it is the duty of the jury to render a verdict for the defendant.
"(4) The court further charges the jury that there is no duty resting upon the defendant company to use the most modern appliances to prevent accident of fires from sparks, but the duty resting upon the defendant is performed, in respect of equipment, by adopting such appliances and contrivances as are in practical use by well-regulated railroad companies, and if the engine of the defendant company drawing the train in question was equipped with such appliances and contrivances as are in practical use by well-regulated railroad companies, although the property involved in this suit was destroyed by fire from sparks from said engine, in that event the plaintiff cannot recover in this suit, and your verdict must be for the defendant.
"(5) The court further charges the jury that if the train in question passed the point of location of the burned property at or about 9 o'clock at night, and the fire in question did not occur until at or about 2 o'clock in the morning, after and during an intermittent rain, the jury may look to the intervening space of practically five hours from the time said train passed and said fire occurred as disclosed by all the evidence in this case, to determine whether said property was destroyed by sparks of fire set out from the defendant's engine; and if the defendant's train was operated without negligence by the engineer in charge, and such engine was equipped with such appliance and contrivances as are in practical use by well-regulated railroad companies; and if the proved evidence in the case does not reasonably satisfy you that said fire was communicated from said engine to the property of the plaintiff and thereby destroyed the same, it is the duty of the jury to render a verdict for the defendant."
"(7) I charge you, gentlemen of the jury, that it is not sufficient to entitle the plaintiff to recover for the plaintiff to prove that the engine drawing the train in question emitted live sparks, or that it emitted live sparks in numbers, but the plaintiff's evidence must go further and reasonably satisfy the jury that the live sparks emitted were of unusual size, and that it emitted live sparks in usual numbers, and unless the evidence so reasonably satisfies the minds of the jury that the fire occurred by reason of such sparks, in that event the plaintiff cannot recover in this case, and your verdict must be for the defendant.
"(8) I charge you, gentlemen of the jury, that unless the plaintiff reasonably satisfies you from the evidence that the engine in question was either improperly handled or was improperly equipped, your verdict must be for the defendant.
"(9) I charge you, gentlemen of the jury, that under the evidence in this case, when the defendant has shown by its evidence that the engine drawing the train in question was properly handled, and properly equipped, and if such be the evidence in the case to your reasonable satisfaction, the plaintiff cannot recover in this case, and your verdict must be for the defendant."

Steiner, Crum & Weil, of Montgomery, for appellant.

W.O. Mulkey, of Geneva, and Farmer, Merrill & Farmer, of Dothan, for appellee.

THOMAS J.

The suit was for fire damage to a building by a passing engine. The assignments of error are treated in the order of presentation by counsel.

The plaintiff, as a witness, having testified: "That is my signature to that paper, I swore to that paper," was asked the following question: "Didn't you state in this paper that you did not know what time the fire occurred?" The bill of exceptions contained the statement that the paper exhibited was the answers of the plaintiff to interrogatories propounded to him by the defendant. The court having sustained the objection of the plaintiff, defendant's counsel stated:

" 'It is the answer to the interrogatories,' and asked the witness the following question: 'I am going to ask the question, if you did not state under oath, on the 13th day of September, 1924, that you did not know what time of the night the fire occurred, but saw the fire from your home about 1 or 1:30 o'clock in the morning. I am asking if you did not swear that?' To this question the plaintiff duly objected, unless defendant introduces it. (Stating) if defendant introduces it, it is all right. The court sustained the objection, and to its action in so doing, defendant there and then duly excepted."

The record fails to show that the defendant stated to the court that the purpose of the evidence sought was that of impeachment. Birmingham R.L. & P. Co. v. Bush, 175 Ala. 49, 57, 58, 56 So. 731; Gunter v. State, 83 Ala. 96, 106, 3 So. 600; Wills v. State, 74 Ala. 21.

The court is not required to search for grounds of admissibility when the same is not limited. Lester v. Jacobs, 212 Ala. 614, 103 So. 682. It may be further noted that the entire deposition, under the rule, should have been shown or read to him (Wills v. State, 74 Ala. 21; Phoenix Ins. Co. v. Moog, 78 Ala. 310, 56 Am.Rep. 31; Floyd v. State, 82 Ala. 22, 2 So. 683; Carden v. State, 84 Ala. 420, 4 So. 823), which was not done, though not made the ground of objection. ( Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370). Later in the trial the deposition and answers were introduced in evidence, and thus the appellant had the opportunity of argument of contradiction or impeachment, if such were presented by the witness' deposition and oral testimony. And if the ruling was error, it was without injury and not an error on which a reversal may be rested. Johnston v. Warrant Warehouse Co., 211 Ala. 165, 99 So. 920; Portsmouth, etc., Co. v. Madrid, etc., Co., 200 Ala. 634, 77 So. 8.

The witness Williams, having testified for the plaintiff, was cross-examined about a contrary statement made and signed at the still in the presence of Joe Ingram, Saunders, and McGehee, as to his and Joe Ingram's actions and whereabouts on the night of the fire, and as to what he did or did not state to said persons or in their presence when the paper later introduced in evidence was signed. The plaintiff had the right to prove the whole conversation, including the preliminary statements of Joe Ingram to the witness. Gibson v. Gaines, 198 Ala. 583, 73 So. 929.

The defendant called as a witness Mr. Casey, who testified that--

He was " 'Chief train dispatcher with the Central of Georgia Railroad Company, on December 31, 1923. I have got the telegraphic records of the movements of passenger trains and freight trains between Dothan and Lockhart on that night.'
"Counsel for defendant then
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    ... ... 68; Lester v ... Jacobs, 212 Ala. 614, 103 So. 682; Cent. of Ga. Ry, ... Co. v. Wilson, 215 Ala. 612, 615, 111 So. 901; ... Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370 ... house she was in the kitchen coming in the other room." ... "Yes, sir; it was." In Central of Ga. Ry. Co ... v. Wilson, 215 Ala. 612, 615, 111 So. 901, the ... observation is made that ... ...
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