L. & N. R. R. v. Quinn , 146 Ala. 330 ( 1905 )

SIMPSON, J.

This is ah action for damages, brought by the appellee,- by next friend, against the appellant; the plaintiff being an infant of tender years traveling with his mother, who had a ticket from Blockton to Brookwood. The damages are claimed as the result of the mother, with the child, being compelled.to leave the train at Alabama Junction before reaching Brookwood.

Taking up the assignments of error as noticed in the brief of appellant, the testimony going to show that the engine went to a water tank near Brookwo’od Avas illegal. If the plaintiff was a passenger entitled to be carried io Brookwood, it was a right, irrespectWe of Avhere the engine Avent after the plaintiff got-off the train, nnd the going of the train near Broolcwood would not even show Avhether or not it aaus dangerous for the train to go to Brookwood, if that Avas-material; the fact above referred to being Avholly immaterial to any issue in the ease. But the defendant introduced this subject bv permitting its AAÚtness to testify that the engine went out of sight in that direction, thug opening the way for the plaintiff to cross-examine and rebut on the subject.

Referring to the tAventieth and twenty-third assignments of error, AAdiile it is true that the allegata and probata must correspond, yet in this case the wrong complained of Avas causing the plaintiff to get off the train, and, if it was proved that plaintiff was a passenger entitled to be carried to Brookwood, and Avas wrongfully put off at Alabama Junction, he Avas entitled to nominal damages.

The seventh assignment of error is sustained. While this court has held that, if the party brings out irrelevant Testimony, the opposite party may cross-examine the Avitness as to such irrelevant matter, yet, even though the AAÚtness may have testified to the immaterial matter in his examination in chief, no question can be asked in regard to the immaterial matter for the purpose of laying a predicate to impeach him. — Blakey's Heirs v. Blakey's Ex’x, 33 Ala. 611, 619; 2 Wigmore on Evidence, p. 1169, § 1007.

From what has been- said, it is evident that there was no error in the refusal to give the general charge.

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

Tyson, Anderson, and Denson, JJ., concur.