East Tennessee, V. & G. Ry. Co. v. Turvaville

• Decision Date: 03 January 1893
• Citation: 97 Ala. 122,12 So. 63
• Parties: EAST TENNESSEE, V. & G. RY. CO. v. TURVAVILLE.
• Court: Alabama Supreme Court

12 So. 63

97 Ala. 122

EAST TENNESSEE, V. & G. RY. CO. v. TURVAVILLE.

Supreme Court of Alabama

January 3, 1893

Appeal from city court of Anniston; B. F. Cassady, Judge.

Action by Frank M. Turvaville against the East Tennessee, Virginia &amp Georgia Railway Company for negligence. From a judgment for plaintiff, defendant appeals. Reversed.

Knox &amp Bowie, for appellant.

John F Methvin, for appellee.

STONE C.J.

The injury to Turvaville, for which the present action was brought, was suffered in an attempt by him to couple loaded freight cars on a spur track of the defendant railroad company. The cars were not of the pattern of the East Tennessee, Virginia & Georgia Railroad Company, but were Union Line cars, having bumpers on either side of the drawheads. McKinney was examined as a witness for defendant. He testified that he had had long experience in railroading and had served in every capacity, from brakeman to yard master, which latter office he then filled. He was a skillful brakeman and coupler. In describing the differences in make between the Union Line cars and those of the appellant railroad company, he testified that Union Line cars were "more dangerous and difficult to couple than the East Tennessee cars." It is not shown at whose instance he gave this testimony, but the connection in which it is found renders it probable that the statement was made while he was being examined for the defendant. No objection was made to this testimony when it was given in, and no ruling was invoked or made upon it at that time. After the testimony was all given in, defendant moved the court to exclude from the jury that part of McKinney's testimony which we have copied. This motion was overruled, and defendant excepted. There is nothing in this exception, first, because it is not shown that the defendant did not itself call out the testimony. A party will not be permitted to experiment in interrogating a witness and calling out an answer, and, when the answer is unfavorable to him, have it excluded on his motion. He takes the risk of the consequences, and must abide the result. In the second place, there is an aspect of this case, to be considered further on, in which the testimony was clearly legal. The plaintiff, Turvaville, was not a regular employe of the railroad company. He was specially employed to do the coupling on the night of the injury; this, in the absence of the coupler, whose general duty it was to do such service. The defendant railroad company had a regulation that coupling should not be done by hand, but with a coupling stick. It is not pretended that Turvaville was notified of this regulation, and he testified that he did not know of it. Neither is it pretended that he was notified of the style of bumpers used on the Union Line cars, or of the increased danger in coupling caused thereby. He testified to his ignorance of this, also. Up to this point there is no material conflict in the testimony. There were three cars loaded with pig iron that were stationary on the lower end of the spur track. On the main track were the engine and tender, and attached to them nine cars loaded with compressed cotton bales. It was proposed to back this train of nine loaded cars down on the spur track, and couple to it the three cars loaded with pig iron. This coupling was the special service Turvaville was employed to render. He had had some experience in coupling. All the testimony, backed, as it is,...