Kansas City, M. & B.R. Co. v. Smith

• Decision Date: 11 June 1890
• Citation: 8 So. 43,90 Ala. 25
• Court: Alabama Supreme Court
• Parties: KANSAS CITY, M. & B. R. CO. v. SMITH.

8 So. 43

90 Ala. 25

KANSAS CITY, M. & B. R. CO. v. SMITH.

Supreme Court of Alabama

June 11, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This action was brought to recover damages for personal injuries sustained by plaintiff on account of a wreck alleged to have been caused by the negligence of defendant. The complaint contained two counts, on which issue was joined, viz., the first and third. In the first of these, the plaintiff sought to recover for the alleged negligence of the defendant in using in the train and transportation an old, weak, and defective car, which by being overloaded, gave way on a trestle and caused the wreck, whereby the plaintiff was injured; and in the third count the plaintiff based his recovery upon the alleged negligence of the defendant by reason of defects in the condition of the ways, works, and machinery used by the defendant, whereby the accident occurred. Issue was joined on these counts by the defendant pleading the general issue, and contributory negligence. Upon the trial, as shown by the bill of exceptions, the plaintiff introduced evidence tending to show that the car which gave way, and thereby caused the accident, was an old car, and the timbers thereof were rotten, and insecure; that it was loaded with some kind of fertilizer or guano, and was overloaded and that, while on a trestle, this car by reason of being old, rotten, and insecure, and because of being overloaded gave way, and fell through the trestle, thereby causing the wreck wherein the plaintiff was injured. The evidence introduced by the defendant was in direct conflict with the evidence of the plaintiff, and tended to show that the cars used in said train, its machinery, and its road-way were in good condition, and that the said car was not overloaded, and that the accident did not occur from any negligence on its part. During the trial, after the examination of Mary A Hughes, a witness for the plaintiff, who testified that she took a photograph of the wreck about two hours after it occurred, and on being shown the photograph testified that that was the one, and that it was a correct picture of the wreck and its surroundings, the plaintiff offered to introduce the photograph in evidence. The defendant objected but the court overruled its objection, allowed the photograph to be introduced in evidence, and the defendant thereupon duly excepted. During the examination of one Slaton, as a witness for the plaintiff, he was asked, "How long, how wide, and how thick is a sack of guano that weighs from 167 to 200 pounds?" The defendant objected to this question, but the court overruled its objection, and allowed the witness to answer against the exception of the defendant as follows: "A 200-pound sack is about 24 inches long, about 18 inches wide, and, when it is down, it is about 9 inches thick, lying down as it lays in a car." Before the trial was entered into, the defendant demanded a struck jury for the trial of this cause. At the time this demand was made, there were only 23 regular jurors in attendance upon the court. The court thereupon instructed the sheriff to "summon one R. E. Seelye as such juror, and he was sworn as such and placed upon the jury." Upon being furnished with this list of jurors, as thus completed, the defendant objected to the list of jurors; but the court overruled its objection, and the defendant duly excepted. There was judgment for plaintiff, and defendant appeals.

Hewitt, Walker & Porter, for appellant.

Bowman & Harsh, for appellee.

SOMERVILLE J.

1. The photograph of the trestle and of the wrecked train of cars was shown to have been taken about two hours after the accident occurred, and was verified by the testimony of the photographer as being a correct representation of the locality and scene. It was clearly admissible in evidence to aid the jury in properly understanding the case. It is a well-understood rule, applied in every-day practice in the courts, that diagrams and maps illustrating the scene of a transaction, and the relative location of...