Louisville & N. Ry. Co. v. Moorer

• Citation: 195 Ala. 344,70 So. 277
• Decision Date: 25 November 1915
• Docket Number: 2 Div. 608
• Parties: LOUISVILLE & N. RY. CO. v. MOORER.
• Court: Supreme Court of Alabama

70 So. 277

195 Ala. 344

LOUISVILLE & N. RY. CO. v. MOORER.

2 Div. 608

Supreme Court of Alabama

November 25, 1915

Appeal from Law and Equity Court, Marengo County; Edward J. Gilder Judge.

Action by H.D. Moorer against the Louisville & Nashville Railway Company for injury to stock in transit. From judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Acts of 1911, p. 450, § 6. Affirmed.

W.F Herbert, of Demopolis, for appellant.

I.I Canterbury and William Cunninghame, both of Linden, for appellee.

SAYRE J.

Plaintiff, Moorer, sued the defendant railroad company for loss and injury suffered in transit by a shipment of horses from National Stockyards, Ill., to Linden in this state. Upon delivery some of the animals were found to be injured, two of them so badly that they died soon afterwards. Some questions are raised on the court's actions in sustaining objections to testimony offered by defendant and in refusing certain special instructions which the defendant requested in writing.

If a witness by resorting to memoranda would refresh his recollection as to facts of which he has no present independent knowledge, he must resort to memoranda made by himself or known and recognized by him as stating the facts truly. The rule by which this court has been governed in such cases is stated in Acklen v. Hickman, 63 Ala. 494, 35 Am.Rep. 54. These observations will suffice to answer several of the assignments of error which seem to assert that a witness should have been allowed to aid his testimony by referring to a bill of lading for facts which had never come within the scope of his personal knowledge.

The court correctly sustained the objection to the question by which defendant sought to have its witness, the conductor of the train between Selma and Linden, say whether there were any "exceptions" noted on the bill of lading when the horses were turned over to him. By itself the question was harmless, but it must have been intended to lead up to proof of what the exceptions noted were to prove, or that no exceptions were noted. If the defendant had a rule or course of business that required its agents to make notes showing the condition of live stock shipments along the way, it may be supposed that the waybill or memorandum of shipping directions would be the appropriate place for such notation. But, wholly apart from this suggestion, which is not of much materiality, the objection was properly sustained for the reason that the meaning of any notes made by agents who had previously handled the shipment would have been more satisfactorily proved by the bill of lading itself, and anyhow, an affirmative answer would have been incompetent, as mere hearsay, while the absence of notes or exceptions, if that is what the defendant expelled to show, would have been evidence of nothing in respect to the condition of the animals at the time of their...