Central of Georgia Railway Co. v. Edmondson , 135 Ala. 336 ( 1902 )

DOWDELL, J.

The complaint was not open to the demurrer interposed.—K. C., M. & B. R. R. Co. v. Watson, 90 Ala. 41; Western R’y Co. v. Lazarus, 88 Ala. 453; Western R’y of Alabama v. Sistrunk, 85 Ala. 353; M. & M. R’y v. Crenshaw, 65 Ala. 566; S. & M. R’y Co. v. Thompson, 62 Ala. 494.

«Tlio evidence showed that there was but- one set of horse tracks on the road-bed near the place of the accident, and which led down to where the horse Avas run over and killed by defendant’s locomotive. In view of this undisputed fact, it was altogether immaterial whether there tvin-e other horses in the same field, in which the horse' in question was killed. The one set of tracks were traced from where the grazing on the, right of way of defendant’s road was seen, down the road-bed to the point of killing, and there was no cau-dence of any other tracks coming onto the road-bed between those points. It is true there, is a dispute as to the distance' from Avhere the horse first came on the railroad to where he was struck, but this difference in the testimony as to distance raised no conflict as to the one sot of horse tracks, and consequently the evidence to Avhicli objection ivas sustained was irrelevant, since it could have been ¡offered for no other purpose than, to sIioav that some other horse in the field made the .tracks testified to. There Avas no error in sustaining the objection to the question as to Avhether there Avere.other horses in the same field.

,On a cross-examination of a Avitness in, the. test of his recollection or sincerity, the court may very, properly alloAV such witness to be asked AA'hether he is as positive as to every other fact testified to by him as he is as to the particular fact then asked about. It involves a different proposition from that in the case of Raines v. State, 88 Ala. 98, cited by counsel for appellant. Here was no attempt to lmve tin* Avitness¡ to institute a comparison between the truthfulness of different parts of his testimony, but to ascertain the degree of recollection with Avhich the Avitness testified. Moreover, upon the. cross-examination of a AAdtness in testing his sincerity, or recollection much is left to the discretion of tire trial court in the. latitude and range of questions, and even to the extent sometimes of asking questions that elicit irreleATint matter. The court committed no error in permitting the question to be asked.

Written charges one and two given at the request, of the plaintiff, in a case similar in its facts to the present case, were pronounced good and tbe giving of them free from error.—Chattanooga So. R’y Co. v. Wilson, 124 Ala. 444.

It is insisted by counsel for appellant that there' was a variance between the allegations of the complaint and the proof, or that there, was a failure of proof as to the averment of negligence' in the management and running of the train, and for this reason the court should have given the affirmative charge requested by the defendant. The. negligent failure to keep a proper lookout for cattle, and live stock on the track is embraced in the general averment of negligence in the running of the train. There ivas evidence tending to show such failure on the part of defendant’s employes or agents in control of the locomotive to keep a proper lookout, and the court thereupon properly submitted this question to the jury.

We find no error, and the judgment of the court below will he affirmed.