Alabama Great Southern R. R. v. Clarke , 145 Ala. 459 ( 1906 )

SIMPSON, J.

This was .an action for damages for the burning of 115 bales of cotton of the plaintiff (appellee) in the warehouse of the Planters’ Warehouse & Commission Company, at Eutaw, Ala.; and it is claimed that said burning 'was caused by the negligence of defendant (appellant), from whose engine it is claimed sparks were emitted, setting fire to cotton on the platform adjoining said warehouse, which fire extended to the warehouse, destroying plaintiff’s cotton. Defendant claimed that the warehouse company was guilty of contributory negligence in permitting cotton to remain on the open platform, where it was liable to be set on fire by sparks necessarily escaping from defendant’s engines in the necessary prosecution of its business.

The, first point raised by the argument is whether or not the plaintiff can be held liable for the consequences of the contributory negligence of the warehouse company, to which plaintiff had committed the care of its cotton. The doctrine of contributory negligence is based upon the principle that the plaintiff, having been guilty of negligence which proximately contributed to the injury received or the loss sustained, cannot recover because he himself is in part responsible for it, although the defendant may also have been negligent. Without passing upon this general principle, the court holds that in this case the negligence complained of, being something not immediately connected with the bailment, toivit, placing other cotton on the platform, which had no necessary connection with the act of storing the plaintiffs cotton, the'plaintiff could not be charged with contributory negligence, on that account.

One assignment of error is to the sustaining of all of the 54 causes of demurrer against the pleas numbered from 2 to 8 inclusive, so that, if any one of the causes of demurrer was properly sustained, the assignment is not sustained. We have treated of the matter as argued.

While it is true that the burden ivas ón the plaintiff to prove the quality of his cotton which was burned, yet one of thé elements necessary in ascertaining what •his cotton ivas worth was the prevailing price of cotton in that market; and if the plaintiff failed to produce proof as to the other elements, then it was a matter of argument to go to the jury as to whether they had sufficient data from which to ascertain the liability, and as to whether, in the absence of proof, they should presume that the cotton of plaintiff, was of the average grade or of the lower.grade. — Berry v. Nall & Duxe-berry, 54 Ala. 446.

Referring to the objection made to the question to the witness Gray,, and the answer thereto, about the “polling” of a car by the engine, as the claim of. the plaintiff ivas that the fire was caused by a spark for the engine, it ivas proper to allow: proof as to ivhat the engine ivas doing a little, before', or about the time the fire ivas discovered, at and near the place of the fire, as a circumstance from which, with other evidence, the jury could determine whether or not the .spark from the engine caused the fire. As to whether the operation of the engine ivas near enough, in point of time- and position, and the proper direction ivith reference to the wind, to have caused the fire, were matters for the consideration of the jury.

It is competent to impeach a witness by proving contradictory statements about a material matter made out of court, and it is not necessary that such contradictory statements should be signed, or even to be in writing. A certain paper was read to the witness Pippin, and the witness identified, it as the paper which had been read to him the night before by Mr. Smith, and that “he stated to Mr. Smith that it Avas all correct, except the fire being at the covered platform; that he also stated that this statement Avas not correct Avith reference that part of it ; that he stated, also, that it was not correct in that he said the engine Avas standing before coming from the upper part of the yard.” Mr. Smith also identified the paper as the one A\diich had been read to the Avitness, and testified that the witness said that it Avas all. correct, and “that he did not deny anything in that statement, either by intimation or by direct declaration.” When this case was first before the court, there being a large “A” in the. space referring to the statement “AAdiich is as follows,” this Aims understood as a reference mark to an exhibit which could not be found; but it appears now that the “statement,” Avhich consists of a series of questions and ansAvers, and which the court at first considered only as a continuation of the cross-examination of the Avitness, is in the record, and the court holds that the trial court erred in sustaining the objection to the introduction of such statement, after it had been identified and referred to in the testimony of tAvo Avitnesses.— 1 Wigmore on Evidence, § 754 ; Foster & Rudder v. Smith, 104 Ala. 248, 16 South. 61.

In view of the latitude alloAved in closs-examination, it Avas competent to prove the manner in AAdiich they AA'ere operating the mi gin e. There Avas no reversible error in oAnrruling the, objections to the question to the Avitness H ines.

There AA'as no error in refusing to give charges numbered 4, 23, and 24, requested by defendant.. As to charge 4, AAdiile there Avas no direct proof as to the condition of the engine, except that produced by defendant, yet then1 AA'ere circumstances from AAdiich it Avas proper to leave it to the jury to consider whether the engine Avas properly equipped, and particularly as the spark arrester Avas submitted for their inspection, and it was for them to examine it and determine, in connection with, other evidence, whether it was a proper appliance. Charge 23 ignores entirely the condition of the engine as to appliances for preventing fires, and the same remark applies to charge 24.

The judgment of the court is reversed and the cause remanded.

McClellan, C. J., and Tyson, Dowdell, and Denson, JJ., concur.