Southern Ry. Co. v. Williams

• Decision Date: 08 January 1897
• Citation: 21 So. 328,113 Ala. 620
• Parties: SOUTHERN RY. CO. v. WILLIAMS. [1]
• Court: Alabama Supreme Court

21 So. 328

113 Ala. 620

SOUTHERN RY. CO. v. WILLIAMS. ^[1]

Supreme Court of Alabama

January 8, 1897

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

Action by Henry Williams against the Southern Railway Company to recover for personal injuries sustained by being forcibly ejected from defendant's train. From a judgment for plaintiff, defendant appeals. Reversed.

Smith &amp Weatherly, for appellant.

B. M Allen, for appellee.

COLEMAN J.

There are only two questions presented by the assignments of errors which we regard as of any importance. On all other questions the rulings of the court, clearly, were correct. The first question for cosideration relates to the action of the court in sustaining an objection and excluding the answer of the witness Westmoreland, the purpose of which was to impeach the evidence of the witnesses, White and Stephenson, by proving contradictory statements; and the second question was, in refusing the motion for a new trial, based upon the grounds that "the verdict of the jury was arrived at in an improper and unauthorized manner." We will consider these questions in the order stated.

It seems that in some of the courts a predicate is not required in order to admit evidence or contradictory statements, but with us such evidence cannot be introduced without a proper predicate. The reason of the rule, it is said, is to prevent surprise, and to give the witness an opportunity to explain himself or the different statements, if such were made. Powell v. State, 19 Ala. 577. The predicate is sufficiently laid when the attention of the witness is called to the time, place, and circumstances, and persons involved and the statements made, but the rule is not ironclad; that is, it does not require perfect precision as to either. When it is clear that the witness cannot be taken by surprise, and ample opportunity is afforded to make any explanation desired, the predicate is sufficient to authorize proof of contradictory statements. The authorities are collected in 2 Brick. Dig. p. 548, §§ 117-121; Nelson v. Iverson, 24 Ala. 9. Another principle is that a witness cannot defeat the introduction of contradictory statements offered for the purpose of impeachment by stating "that he does not remember," and the like answers. Payne v State, 60 Ala. 80; Brown v. State, 79 Ala. 61.

The plaintiff had examined two witnesses, Stephenson and White who testified to the circumstances of the injury, and whose testimony, with more or less force and relevancy, tended to show that Westmoreland forcibly ejected from, or ordered the plaintiff to jump off, a running train. The defendant offered to prove by Westmoreland that, about a week or 10 days after the injury occurred, these two witnesses were together on his train, sitting in the same seat, and that he had a conversation with them relative to the injury. The witness Stephenson had been interrogated as to the conversation, and was asked if he did not say that he heard the conductor tell the plaintiff not to jump off the train. The recollection of the witness Stephenson was not clear as to the conversation, but his best recollection was that he made no such statement. On cross-examination the witness White testified as follows: "Remembered shortly afterwards riding on the train with the witness Stephenson, coming from Corona, and having a talk with Westmoreland about the accident. Witness did not remember what was said in that conversation. Witness did not remember Westmoreland asking him, or asking Stephenson in witness' presence, what it was that the conductor told Williams, and did not remember the conductor asking the witness or Stephenson, or both of them, if he (the conductor) did not tell Williams 'not to jump off.' Witness was not aware of and did not get the impression that Stephenson told Westmoreland that he (Stephenson) heard Westmoreland tell Williams not to jump off." "Witness remembered on that occasion the conductor, Westmoreland, taking out his book, and taking his and Stephenson's names, stating that he might need them as witnesses." For the purpose of impeachment, the defense offered to prove by the witness Westmoreland that on the occasion of the conversation on the train the witnesses Stephenson and White were sitting together on the same seat; that he addressed them together, not particularizing the one more than the other. He was then asked this question: "Did you say, in...