Western Ry. of Alabama v. Price

• Citation: 192 Ala. 430,68 So. 278
• Decision Date: 22 April 1915
• Docket Number: 590
• Parties: WESTERN RY. OF ALABAMA v. PRICE.
• Court: Supreme Court of Alabama

68 So. 278

192 Ala. 430

WESTERN RY. OF ALABAMA v. PRICE.

No. 590

Supreme Court of Alabama

April 22, 1915

Appeal from City Court of Selma; J.W. Mabry, Judge.

Action by Tom Price against the Western Railway of Alabama, for damages for killing a mule. Judgment for plaintiff, and defendant appeals. Affirmed.

Transferred from the Court of Appeals under section 6, Acts of 1911, p 449.

George P. Harrison, of Opelika, for appellant.

Partridge & Hobbs, of Selma, for appellee.

SOMERVILLE J.

For the purpose of qualifying a witness to testify as to the value of a mule, it is not only proper but necessary to ask him if he knows its value. And although, in the estimation of damages for its wrongful destruction, the law generally looks to the value of property at the time and place thereof, yet it is well settled that evidence of its value at other times and places may be both relevant and admissible as tending to show its value at the time and place in question. Ward v Reynolds, 32 Ala. 384; Roney v. Winter, 37 Ala 277; Johnson v. West, 43 Ala. 689; S. & N. Ala. R.R. Co. v. Wood, 72 Ala. 451; Echols v. L. & N.R.R. Co., 90 Ala. 366, 7 So. 655. Hence the objection to the general question that it did not appear that the witness knew the value "of such animals in Selma," and that it was irrelevant, was properly overruled. Moreover, when objection was made to the question, the trial judge said, "Here in Selma is what you mean?" and plaintiff's attorney answered, "Yes, sir; Dallas county, Ala." This conversation in the presence and hearing of the witness must be regarded as a qualification of the original question by its restriction to Dallas county, and thereby the objection was fairly met and removed.

On the cross-examination of one Hatcher, a witness for plaintiff, defendant elicited the fact that the witness found the dead mule at a point nearer to the Western than to the Southern railroad track. Afterwards he said: "I know who they say the tracks along there belong to; as a matter of fact, I don't know whether the Western has got a track, nor whether the Southern has got one." Whereupon defendant moved to exclude the witness' former statement, because he had no knowledge that the Western had a track there. One who elicits a statement from a witness has no right to have it excluded because it is unfavorable to himself, and defendant's motion was properly overruled on this ground, if no other.

If the evidence tended to show that this mule was killed by a locomotive or car of defendant, then the burden of proof was on defendant to show that there was no negligence on the part of itself or its servants. Code, § 5476. And, as charge No. 2 misplaced this burden of proof, it was properly refused.

The real question in the case is therefore presented by the refusal of the trial court to give for defendant the general affirmative charge as requested by it in writing.

Appellant's argument in this behalf is: (1) That there was a fatal variance between the allegation of the complaint that the mule was killed on or near the track of defendant company and the proof...