Horton v. Louisville & N.R. Co.

• Citation: 49 So. 423,161 Ala. 107
• Parties: HORTON v. LOUISVILLE & N. R. CO.
• Decision Date: 22 April 1909
• Court: Supreme Court of Alabama

49 So. 423

161 Ala. 107

HORTON v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

April 22, 1909

Rehearing Denied May 11, 1909.

Appeal from Circuit Court, Conecuh County; J. C. Richardson, Judge.

Action by W. K. Horton against the Louisville & Nashville Railroad Company for the destruction of cotton by fire set by a locomotive. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The objections to evidence are sufficiently stated in the opinion of the court. The following charges, given at the request of the defendant, are assigned as error: (D) "The court charges the jury that, notwithstanding the fact that they may be reasonably satisfied from the evidence that the engine of the defendant was throwing sparks in dangerous and unusual quantities, and of unusual size, yet, before they can find a verdict for defendant, they must be reasonably satisfied from the evidence that the defendant's engine was either improperly constructed, or that it was improperly handled managed, or controlled, or that the said engine was defective in some manner, and that if they are reasonably satisfied from the evidence that the said engine was properly constructed and managed, handled, and controlled, and was defective in any manner, and was equipped with approved appliances to prevent the escape of fire and sparks, then your verdict must be for the defendant." (G) "The court charges the jury that notwithstanding the fact that they may be reasonably satisfied from the evidence that the cotton which is alleged to have been burned was burned from sparks emitted from an engine of the defendant, that before they would be justified in finding a verdict for plaintiff they must further be reasonably satisfied from the evidence that the defendant's engine was defectively constructed or that it was out of repair, or that it was negligently handled, managed, or controlled by the servants of the defendant, and if the jury is reasonably satisfied from the evidence that such engine was properly constructed, was in good repair, and was properly handled, managed, and controlled by the servants of the defendant in charge of such engine, your verdict must be for the defendant."

Within the bill of exceptions in the transcript is charge marked "No. B2," which is set out in full. Across this charge are drawn certain erasure lines, and indorsed in ink across the charge are these words: "This charge, B2, was not given in this case, but in the Irby-Smith case. J. C R." On the transcript is indorsed: "The indorsement in writing appeared on the bill of exceptions in the handwriting of J. C. Richardson, at the time the bill was filed in my office. S. L. Tisdale, Clerk." This was the erasure sought by the appellant to be stricken from the record.

Stallworth & Burnett, James A. Stallworth, and Hamilton & Crumpton, for appellant.

George W. Jones and Rabb & Paige, for appellee.

DOWDELL C.J.

The preliminary motion of appellant, here made, to expunge certain erasures from the bill of exceptions as contained in the record, cannot be entertained. It clearly appears that the said erasures were made by the presiding judge, who signed the bill of exceptions, and before he signed the same as such. If the bill of exceptions as presented by the appellant to the judge for signing by him was a true and correct bill, and the judge failed or refused to sign the same as presented, the appellant's remedy, under the statute, was to establish his bill in this court on proper proceedings under the rules.

The assignments of error on the record relate to rulings of the court on the introduction of evidence and to instructions to the jury. There was no error in overruling the objection to the question by the defendant, on the cross-examination of the witness Cunningham: "Do you know what finally became of the cotton?" In the first place, the objection was general; and, in the second, the evidence sought to be elicited was relevant and material. It was shown that a part of the cotton, for the destruction of which damages were claimed in the complaint, was only partially damaged.

The witness Young testified that he had been a locomotive engineer for about 15 years, and was in charge of the locomotive alleged to have caused the damage in question. He was then asked: "Do you know how to properly handle manage, and control an engine?" A general objection was made by the plaintiff to this question, which was overruled by the court. There was no error in this ruling. The objection was general. The evidence sought was, under the issues in the case, relevant and material. Counsel for appellant cite the case of B. Ry., L. & P. Co. v Martin, 148 Ala....