Opinion
6 Div. 495.
June 20, 1918.
Appeal from Circuit Court, Blount County; J. E. Blackwood, Judge.
Erle Pettus, of Birmingham, for appellant. Geo. W. Jones, of Montgomery, Ward Weaver, of Oneonta, and Frank Dominick, of Birmingham, for appellee.
On a former appeal in this case we made a statement of the general aspects of the case to which we now refer. L. N. R. R. Co. v. Porter, 196 Ala. 17, 71 So. 334. We reproduce as it was written what we then said with respect to the true issues in the case:
"Clearly, the deceased was a trespasser upon the track, and defendant owed him no original duty to know he was there; but if the engineer was apprised of the presence and peril of the deceased upon the track in time to save him by the prompt use of any means at his command, and thereupon negligently, willfully, or with conscious indifference to the probable consequences of the situation thus known to him, omitted to do what he might have effectually done to save deceased, then defendant was liable under the first or second count of the complaint, according as the jury may have found that the engineer intended to kill plaintiff's decedent or was consciously indifferent to that result on the one hand, or that his omission was the result of mere inadvertence on the other. These were the true issues made by the pleading and the evidence, and to these questions of fact the consideration of the jury should have been limited."
On the second trial the issues were so limited. The assignments of error now presented for review are based upon rulings on evidence and the giving or refusal of special charges requested by the parties. We consider seriatim those assignments of error which are urged in argument, numbering them as they are numbered on the record.
2. In view of the fact that the witness was testifying for plaintiff for the first time on the trial, the question here assigned for error was well within the discretionary latitude of the cross-examination allowed upon immaterial matters. Carmichael v. State, 197 Ala. 185, 72 So. 405.
4. There was no error in overruling appellant's objection to the question propounded by defendant to its witness Higgins:
"When you saw Porter [the deceased] get on the track and the engine backing [as the witness had testified], do you know whether or not he [the engineer] could see Porter?"
This court has ruled upon the propriety of questions like this. Central of Georgia v. Hyatt, 151 Ala. 355, 43 So. 867. Another very good reason why reversible error cannot be predicated of this ruling is that the witness answered that he did not know.
5. The question defendant was allowed to ask its witness Talford:
"Tell the jury whether or not you saw Porter jump off the freight train [moving along a parallel track] and stop in front of the engine."
Talford was defendant's engineer charged with negligence, and his negative answer was patently relevant and material. The question no more assumed that deceased stepped in front of the engine than it assumed that the witness saw deceased jump from the freight train. It assumed nothing. It asked for the witness' statement as to the facts.
6. This assignment is argued as if the trial court had allowed the witness to repeat the incompetent statement of another. Nothing of the sort occurred. The question asked for relevant and material facts and was properly allowed.
7. One T. L. Green testified for the plaintiff. He had made a statement in writing immediately after the accident which resulted in the death of plaintiff's intestate, and that statement, after being duly submitted to the witness and identified by him, was admitted in evidence over plaintiff's objection that it was incompetent, irrelevant, immaterial, and illegal. Plaintiff's subsequent motion to exclude the statement as a whole was overruled and is assigned for error. This ruling was very different from that held for error in Helton v. Ala. Mid. R. R. Co., 97 Ala. 275, 12 So. 276. The statement here in question involved the witness in material contradictions, and the motion to exclude was properly overruled.
8. Nor was there error in overruling plaintiff's motion to exclude that part of the statement to the effect that the engineer could not have seen deceased after he stepped on the track. This statement, if made upon the witness stand, would have been competent. Central of Georgia v. Hyatt, supra. Inferentially, we think, it involved the witness in a material contradiction, or, if that be doubted, then it was an iteration of the witness' testimony. At any rate, to recur to the statement as a whole, there was no introduction in evidence of a statement devoted exclusively to the mere inconsistent theories and opinions of the witness, as was the case in Helton v. Ala. Mid. R. R. Co., supra.
9. There would have been no error in refusing to admit the bill of exceptions reserved on the former trial, to show what the witness Talford then testified to. Central of Georgia v. Carleton, 163 Ala. 62, 51 So. 27.
11. No error was committed in excluding the affirmative answer of the plaintiff's witness Porter to the question:
"State whether or not he [Talford] testified [on the former trial] substantially that the fireman was on his side looking."
This testimony was offered for the purpose of impeaching the witness Talford. We do not find that the attention of the witness Talford had been directed to that part of his testimony, as to which plaintiff sought to impeach him, with the particularity necessary in laying a predicate for impeachment, nor, indeed, that on the last trial he testified to anything in conflict with his testimony on the former trial. This reproduction of the witness' testimony on the former trial could only have been competent in any event to impeach the witness. In no event could it have been received as original evidence of the fireman's knowledge of the presence and peril of plaintiff's intestate upon the track, nor do we assume that it was offered for that purpose.
12. This is disposed of on the same reasons mentioned in justification of the court's ruling specified in the eleventh assignment of error.
14. This assignment furnishes no sufficient reason for reversing the judgment. Plaintiff hardly went far enough to develop a material ruling — plaintiff did not ask what effort had been made to find the witness. But, aside from this, plaintiff, proposing to introduce the testimony given by the witness Jones on the former trial, assumed the burden of showing to the court that he had exercised due diligence to find the witness. Pope v. State, 183 Ala. 61, 63 So. 71. He had no right to rely upon the efforts, diligent or otherwise, of his adversary.
15, 16, 17, 18. These assignments of error are based upon rulings by which the trial court refused admission to the testimony of the absent witness Jones, excluded the sheriff's return, and the sheriff's statement, as a witness, that he believed the witness Jones was out of the state; he believed it was not marked up, he was not positive. As for the return, the bill of exceptions does not show what it was, and error cannot be predicated of its exclusion, while, upon the case as a whole, the evidence was patently insufficient to justify the admission of the testimony on the former trial on the theory that plaintiff had exercised due diligence to procure the attendance of the absent witness. Indeed, while two witnesses testified to their most vague information or belief that the absent witness may have been without the state, the only effort to locate him consisted in the issue of a subpœna to one county, the return upon which is not shown by the record. The court committed no error in excluding all the evidence offered on this subject or in rejecting the proffered testimony of the absent witness.
19. There was no error to reverse in excluding the statement made by counsel to the jury on the argument of the case:
"The railroad would much rather try him [referring, we presume, to defendant's engineer Talford] for murder than to have a suit here to make them pay for the negligent killing of the intestate."
There was, of course, no evidence to sustain the assertion, and while it may, possibly, have been permitted to counsel to infer such a state of mind in the defendant, it is inconceivable that by this ruling of the court plaintiff was deprived of any advantage to which he was legitimately entitled in presenting his case to the jury. The court pursued the safe course.
20, 21. Charge 5, requested by plaintiff, was correctly refused. There was evidence from which the jury might have inferred that plaintiff's intestate knew of the approach of the engine and tender that killed him and miscalculated the distance. In that event plaintiff's intestate was guilty of negligence proximately contributing to his death, and his negligence was "subsequent," though there was no plea raising the issue of subsequent contributory negligence on the part of plaintiff. And because there was no such plea charge 8 was also refused without error. It was an abstraction which could serve no purpose in the case. The pleadings remained as they were upon the first trial, and the record shows that the case was submitted to the jury on the issues stated in the opinion on former appeal; in other words and in short, the court submitted the case to the jury with instructions that, if the engineer became aware of the presence and peril of plaintiff's intestate upon the track and thereafter failed to make proper efforts to prevent injuring him, then plaintiff was entitled to recover, and this statement — pretermitting the difference between the counts which was explained to the jury — covered, in brief, the law of the case.
22, 23, 24, 25, 27, 28, 29. The charges to which these assignments refer were properly given to defendant. They followed the law as stated upon the former appeal. Error is affirmed of them for the sole reason that, under the evidence, as appellant suggests, the fireman may have been guilty of negligence; but we find no evidence which would warrant that conclusion. The mere fact that the fireman was sitting on his side of the engine, which was moving backward, did not furnish a sufficient basis for an inference that he saw the danger of plaintiff's intestate and failed negligently to communicate the fact to the engineer.
30. The charge made the subject of this assignment was not erroneously given. The engineer could do no more than use the means at hand. The charge which the court said should have been given in Brown v. St. L. S. F. R. R. Co., 171 Ala. 310, 55 So. 107, cited by appellant (charge 10 in that case), asserted a less degree of care. It asserted in effect only that it was the duty of the engineer, having discovered a person in a position of peril on the track, "to use some means to avoid the injuries which would have suggested themselves to the mind of an ordinarily prudent man under the same circumstances."
31. This assignment discloses no error. The engine was moving slowly — hardly much faster, under any of the evidence, than a man could walk. Unless the engineer was actually aware of intestate's danger, and, as a reasonably prudent agent, should have known that intestate was unaware of the approach of the engine, and thereafter failed in some one of the particulars specified in the charge, plaintiff should not have been allowed to recover under the wanton or willful count of the complaint. 196 Ala. 17, 71 So. 334.
32, 33. The charges given for defendant, and set out in these assignments, stated the law as it had been stated on the former appeal. 196 Ala. 17, 71 So. 334.
Finding no error, the judgment must be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.