Central of Georgia Ry. Co. v. Wilson
Decision Date | 20 January 1927 |
Docket Number | 4 Div. 275 |
Citation | 111 So. 901,215 Ala. 612 |
Parties | CENTRAL OF GEORGIA RY. CO. v. WILSON. |
Court | Alabama 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:
Steiner, Crum & Weil, of Montgomery, for appellant.
W.O. Mulkey, of Geneva, and Farmer, Merrill & Farmer, of Dothan, for appellee.
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:
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.
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