Alabama Great Southern Ry. Co. v. Sanders , 145 Ala. 449 ( 1906 )

DOWDELL, J.

No questions arise in this case on the pleading's. The complaint contained four counts; all of which were in case; each court averring simple negligence on the partvof defendant, its agent, or employees.

The first seven assignments of error relate to the rulings of the trial court on the admission and rejection of testimony. The first .assignment of error complains of the ruling of the court in sustaining appellee’s objection to the question propounded by the appellant to the witness Minnie Sanders. This question called for a mere, opinion or conclusion of the witness, and. which ,on the-facts predicated in the question the jury were as competent to give as the Avitness. Consequently no reversible error Avas committed by the court in its ruling.

The second assignment of error is based 'on the ruling of the court in sustaining appellee’s .objection to the question by appellant put to the same Avtiness: “Whether or not she had been connected AArith or Avorked for the mills at Oottondale, of which the plaintiff in this case Avas superintendent.” The evidence sought to be elicited by this question could have had no other purpose than to sIioav feeling or bias on the part of the Avitness. The Avitness had already testified that she Avas at the time of the fire Avhich destroyed plaintiff’s property, and Avhich was averred to have been the result of defendant’s negligence, AA'orking for the plaintiff, and had been Avorking for him ever since, and Avas Avorking for him -on the day of the trial of the case. Manifestly, in the ligt of this evidence, no possible harm or injury resulted to the defendant from the court’s ruling.

The competency of the Avitness J. W. Sanders to testify as an expert Avas sufficiently shOAvn by the evidence, and no error Avas committed by the court in overruling the objections of the appellant to the questions put to this Avitness, and which are shoAAm in assignments of error 3, 4, and 5.

The folloAA’ing question was asked the Avitness L. D. Sanders by the plaintiff, appellee here: “In your judgment and opinion, as an expert in the cotton mill business, could cotton be set on fire by steam from the pipes through AAdiich it is conveyed to dry the cotton?” This question Avas objected to by the defendant. The court OArerruled the objection, to AAdiich ruling the defendant excepted. No ground of objection being specified, the objection to the- question aauis general. The AAdtness’ competency to testify as an expert had been shown. It is, liOAvever, insisted here by counsel for appellant that , there Avas no pretense that cotton could be set on fire by steam from the pipes. This being true, the question and the Avitness’ answer to it, that it could not be set on fire by the steam from the pipes, was harmless to the defendant. Moreover, the ground of objection insisted upon here Avas not specified, and, the question not being one which on its face called for illegal evidence, the court will not be put in error for overruling a general objection. For the same reasons, there was no error in overruling the objection to the question to the witness N. J. Appleyard.'

The first' count of the complaint charges negligence generally, without specifying whether it vas in the equipment or operation of the engine. Under this count it was competent to show negligence on either of these two phases. The main contention in this case was whether the fire which destroyed plaintiff’s property originated from sparks thrown from defendant’s locomotive engine, and, if so, then whether or not the defendant’s locomotive engine was properly equipped and properly handled. As to the origin of the fire, it is conceded that there was a conflict in the evidence; but it is insisted in argument of counsel for appellant that the defendant’s evidence clearly and without any conflict showed that the defendant’s engine was properly equipped and properly handled. In this, however, we cannot agree with appellant’s counsel.. The undisputed evidence did not show that the engine was properly equipped with proper appliances to arrest sparks. The two witnesses, Mitchell and Carter, testifying in behalf of the defendant as to the equipment of the engine in question, and who made an examination of the engine, about two days after the fire, on its return trip to Birmingham, we think in some material particulars contradict each other. While one of these witness testified to having found the spark arrester in good condition and such a one as is used by all well regulated railroads, the other witness testified that the spark arrester had been patched and had worn so that the meshes were larger than when it was first made, and it was also infer-able from the testimony of this latter witness that the spark arrester was not of the best and safest kind in use on all well regulated railroads in the Birmingham district.

Several witnesses for the plaintiff testified that, a few minutes before the fire originated and was discovered in the building which was destroyed, the defendant’s engine passed by and at the time was emitting sparks of unusual size and in unusually large cpiantities. There was also evidence on the part of the plaintiff to the effect that the fire could not have originated other than by sparks thrown from the defendant’s engine. While this was contradicted by defendant’s evidence yet, on this phase of the evidence, the portion of the oral charge of the court, which was excepted to by the defendant and here assigned as error, ’ correctly stated the law in accordance with the doctrine heretofore laid down by this court in the following cases. — L. & N. R. Co. v. Marbury Lumber Co., 132 Ala. 520, 32 South. 745, 90 Am. St. Rep. 917 ; A. G. S. R. Co. v. Johnson, 128 Ala. 283, 29 South. 771 ; L. & N. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620 ; L. & N. R. Co. v. Malone, 109 Ala. 509, 20 South. 33.

In the foregoing consideration by us of the part of the oral charge of the court, which was expected to, we have had in mind the fact that the bill of exceptions does not purport to set out all the oral charge of the court to the jury. It is apparent, from the portion of the oral charge set out in the record, that the court Avas then dealing Avith the subject of a prima facie case as made by the plaintiff on his evidence, and on such a case the statement of the laAV by the court AAras correct. It aauII not be presumed, in order to put the court in error, that the court, in other portions of its oral charge, failed to state the defendant’s side of the case; that is, Avliat Avould be sufficient to meet and overcome the prima facie case of the plaintff. In other Avords, that if the jury belieA’ed from the evidence that the engine AAras properly equipped and properly handled, and that the emission of the sparks AAras not due to any negligence on the part of the defendant or its agents, then the plaintiff Avould not be entitled to recover. Both of these propositions contain correct statement of the laAV, and each has its proper- place in the charge of the court to the jury. An error cannot be predicated upon the statement of either one, unless a failure or refusal to state the other affirmatively appears.

Written charge No. 1, which was given at the request of the plaintiff, stated the law in accordance with the views hereinabove expressed and the principles laid 'down in the cases above cited; nor do we find that the court committed anjr error in the giving of charges 2, 3, 4, and 5, requested by the plaintiff.

The contention of appellant’s counsel that “the averments in each óf the counts are in the disjunctive,” and that “they embrace two different kinds of action and affirm neither one, but merely affirm that it is one or the other,” is without merit. Counsel seemed to rely in support of their contention on the doctrine laid down in the case of Sou. R. Co. v. Bunt, 131 Ala. 591, 32 South. 507. The principle stated in that case has no application here. There two distinct causes of action, one in trespass and the other in case, were averred in the alternative; here there is but one cause of action averred in the count or counts, and that is in case and predicated on simple negligence. It is unimportant whether the simple negligence is averred as that of the principal or of his agent, acting within the scope of his authority. Iu either case there is an averment of but one cause of action. Both are in case, both charge simple negligence only, and the same testimony would entitle the plaintiff to a verdict in either, and the same defenses would be available to the deefndant in either. If these counts were defective, it certainly was not because they averred two diffrent and distinct causes of action. If they were otherwise defective because of indefiniteness or uncertainty in the language employed, such defect should have been pointed out on demurrer; and it may be that the counts were defective in not averring that the negligent act of the servant or agent was committed while acting within the line of his duty or employment, but this was matter to be reached by demurrer. Not all of the counts, however, of the complaint, contained the averment in the alternative, but only the first, second, and third counts. This disposes of written charges 1,19, 20, 21, and 26, requested by the defendant, and which were refused by the court.

Written charge No. 4, requested by the defendant, was properly refused. As we have seen, the evidence in regard to tlie equipment of the engine was not free from conflict, and this charge was therefore an invasion of the province of the jury.

Charge No. 7, requested by the defendant, if for no other reason, was properly refused as being argumentative. Moreover, this charge ignored that part of the plaintiff’s evidence which went to show that the sparks emitted were in unusual size and in unusual quantities, and the charge, therefore, in this respect had a misleading tendency.

Charge No. 13 was also argumentative, and for this reason, if no other, faulty, and the court in its refusal committed no error.

We have carefully considered all the evidence in this case, contained in the record, and under the rule laid down in the leading case of Gobi) v. Malone, 92 Ala. 630, 9 South. 738, and which has since been followed by this court in many other cases, we are not prepared to say that the trial court committed any error in overruling the motion for a new trial. We fail to find any reversible error.

Affirmed.

Haralson, Simpson and Denson, JJ., concur.