Nevers Lumber Co. v. Fields

• Decision Date: 12 February 1907
• Parties: NEVERS LUMBER CO. ET AL. v. FIELDS.
• Court: Alabama Supreme Court

44 So. 81

151 Ala. 367

NEVERS LUMBER CO. ET AL. v. FIELDS.

Supreme Court of Alabama

February 12, 1907

Application for Rehearing Withdrawn May 19, 1907.

Appeal from Circuit Court, Marengo County; John T. Lackland, Judge.

Suit by George B. Fields, administrator, against the Nevers Lumber Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

During the testimony of Jim Elmore, plaintiff asked the witness "State what, if anything, Pete Nevers said to John Nevers about intestate being killed by a defect in the track and what reply, if any, John Nevers made." The bill of exceptions then states defendant objected to the question and the court overruled the objection. The witness answered the question as follows: "Pete Nevers said Fields was killed while making a coupling of the cars, because of a defect in the track, and John Nevers said, 'Is that so?' " John Nevers was asked as to what instructions he had given intestate regarding his duty as to coupling cars, and as to whether or not it was "any part of the duty of the conductor of the logging train of your plant to make couplings of cars."

The seventh charge requested by the defendant, and refused, was as follows: "(7) If the jury find from the evidence that the practice and custom prior to the time of intestate's death had been not to couple the cars while at the pond until the logs had been unloaded and they were ready to be taken back to the place where the logs were loaded, and if the jury find from the evidence that the intestate at the time of his death attempted to couple the cars together before they were unloaded, and that his injury was the proximate result of his having done so, the jury must find for the defendant."

There was judgment for plaintiff for $4,235.

Tillman Grub, Bradley & Morrow, for appellants.

De Graffenreid & Evans, J. M. Miller, and Canterbury & Gilder for appellee.

DENSON J.

This suit is prosecuted by George B. Fields, as the administrator of Gaius Fields, deceased, against the defendants, C. W. Robinson and J. R. Nevers, as individuals and as partners trading and doing business under the firm name and style of the "Nevers Lumber Company." The action sounds in damages for negligently causing the death of plaintiff's intestate; the complaint being based on the first subdivision of the employer's liability act (Code 1896, § 1749).

Conceding that the evidence given by Jim Elmore, as to the conversation between Pete and John Nevers, is objectionable on the ground that the matters spoken of in that conversation are not of the res gestæ, yet the objection to the question that called for the conversation being a general one, the rule applies that the trial court cannot be put in error for overruling the objection, unless the question on its face calls for illegal evidence. When the question is looked to, it is apparent that it requires reference to other facts to make its illegality appear. In other words, the question on its face is susceptible of a perfectly legitimate answer; for instance, the witness might have said that he saw the accident, and, in describing the facts in connection with it, might have accurately defined the cause as alleged in the complaint, and John might have answered that he knew of the defect before the accident occurred, and, John being a party to the suit, the evidence would have been competent. If the answer to the question was illegal, the defendants took the proper course to protect themselves against it by moving to exclude; but they have cut themselves off from having the trial court's ruling on the motion considered by not assigning it as error. The trial court cannot be put in error for overruling the objection to the question. Steele v. Tutwiler, 57 Ala. 113; Dryer v. Lewis, 57 Ala. 551; Richmond & Danville R. R. Co. v. Jones, 92 Ala. 218, 9 So. 276; Pool v. Devers, 30 Ala. 672.

The second, third, and eighth grounds in the assignment of errors are not insisted upon, and we pass them out of view.

J. R Nevers is a party to the suit, and testified, as a witness for the defendants, that he employed the deceased to work for them--he made with him the contract of employment. It is clear that he is not a...