Jefferson Fertilizer Co. v. Houston
| Decision Date | 28 November 1911 |
| Citation | 3 Ala.App. 348,57 So. 98 |
| Parties | JEFFERSON FERTILIZER CO. v. HOUSTON. |
| Court | Alabama Court of Appeals |
Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.
Action by W. D. Houston against the Jefferson Fertilizer Company for damages for the death of a heifer. Judgment for plaintiff and defendant appeals. Reversed and remanded.
The following charge was refused to defendant: "(11) The court charges the jury that, if you are reasonably satisfied from the evidence that the death of plaintiff's cow was caused by reason of some disease, or any other cause than the contents of the white lead pit she walked into, then your verdict must be for the defendant."
Estes, Jones & Welch, for appellant.
William Hugh McEniry, for appellee.
The heifer that was the subject of the litigation resulting in this appeal was the property of the appellee, who brought suit against the appellant, alleging that a ditch excavation, or trench negligently maintained upon its property, and used in connection with the manufacturing business carried on by appellant, caused the animal's death. The appellant was engaged in manufacturing fertilizers and by-products at its plant near Bessemer, in precinct No. 33, Jefferson county, where there was no law to prohibit domestic animals from running at large. The premises where the business was carried on were not inclosed, and the appellant had excavated a pit, ditch or trench in the ground near one of its buildings, into which was run white lead to be dried by the sun before shipment. This white lead had more or less sulphuric acid mixed with it, and was washed by a flow of water from the building through troughs into the ditch to dry. There was no guard or other protection around the ditch or pit to keep out stock running at large, except the embankments made by the dirt thrown out in excavating the trench. The white lead and other substances run into the pit had no qualities to attract cattle, but around another place in the plant a saline matter, known as "kainit," had been kept, which had attracted cattle; but it was not shown that this kainit had been kept on the premises where it would attract animals for some time prior to the injuries complained of. Grass and weeds, however, were growing on the premises in August, at the time of the occurrence in question.
The appellee, the owner of the heifer, who lived near appellant's plant, alleged in his complaint that the ditch was negligently maintained; that there was no fence or other guard to prevent cattle going into it; that the salty matter (kainit) kept upon the premises, or the grazing afforded, attracted his heifer to go there; and that she walked or fell into the excavation made for drying the white lead, and by reason of the lead or acid contained therein received injuries resulting in her death.
Suit was originally brought in a justice court and tried there and appealed to the city court of Bessemer, where it was again tried and a judgment rendered, from which this appeal is prosecuted. There are no less than 49 assignments of error, a great many more than are necessary to present for review all the questions that could be properly raised upon the record.
On the trial of the case in the city court, the appellant objected to the question asked the witness Joe Houston, appellee's son. "What did you say to Mr. Southerland with reference to the heifer when you were there?" The court overruled the objection, and allowed the witness to answer. The conversation was the next day after the animal had been in the pit, and the question clearly sought to elicit illegal testimony, in that it called for a mere narrative of a past event or declaration, and the objection should have been sustained. M. & C. R. R. Co. v. Womack, Adm'r, 84 Ala. 149, 4 So. 618; So. Ry. Co. v. Reeder, 152 Ala. 227, 44 So. 699, 126 Am. St. Rep. 23, and authorities cited; L. & N. R. R. Co. v. Pearson, Adm'r, 97 Ala. 211, 12 So. 176. The conversation was no part of the res gestæ; it related to a past transaction, and the...
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