Birmingham Railway Light & Power Co. v. Martin , 148 Ala. 8 ( 1906 )

WEAKLEY, C. J.

— The judge of the city court of Bessemer, by virtue of section 18 of the act establishing that court (Acts 1900:Q1, p. 1863), had authority in term time to extend the time for signing á bill of exceptions, and his order, made before the expiration of 60 days next following the trial of the issues of fact, was efficacious to accomplish the extension. — Moss v. Mosley, post. — 41 South. 1012. The time was. further and properly éx-tended by successive argeements of counsel, and the bill was signed during the trial term before the expiration of the.period fixed in the last agreement and within six months from the date of trial. The motion to strike the bill of exceptions must be overruled. .

The two counts of the complaint are sufficient in their, averments of negligence. —L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620; Birmingham R., L. & P. Co. v. Hinton, 141 Ala. 606, 37 South. 635.

The question propounded to' the witness Mrs. M. F. Smithson was not- objectionable in that she was interrogated as to the throwing out of the sparks by the engine “a short while” prior to the time of the fire. If it be true that the expression “a short-while” is somewhat indefinite, the defendant could by cross-examination have ascertained, from the witness with more of exactness the length of the period which intervened between the fire and the time she saw the engine emit sparks that went as far from the track as the house of the witness.

The plaintiff, after stating a large number of articles of personal property, with their value, which he testified were destroyed in the fire, was asked the general question: “Well, was anything else destroyed in that fire?” No objection was interposed to the question, and it was then answered: “I lost one dog, worth $25.” The defendant then “objected to any testimony with reference to the dog, or its value, as calling for incompetent, irrelevant, immaterial, and illegal evidence,” which objection the court overruled; an exception being reserved. The argument in support of the objection is, not that a dog is not personal property, but that it was not expressly named in the complaint as having been destroyed by the fire. The complaint did not undertake to state item by item all the property destroyed, but, after naming some, continued: “And other personal property, all situated in and about the storehouse.” No effort was made by the defendant, by motion or otherwise, to secure a specific statement as to the nature and character of the “other personal property” alleged to have been destroyed; and since the general question, to which no objection was interposed, was broad enough to call for a statement of anything destroyed in the fire, even a. dog, Ave hold that no error Avas committed in overruling the objection.

There Avas no error in refusing to allow the engineer, Weaver, to answer the question whether he handled the engine carefully as he went along by and left Twenty-Fourth street. The Avitness should be called on to state what he did and how he handled the engine. Whether the handling was careful was one of the questions the jury had to decide, if they found the engine operated by the Avitness set out the fire which destroyed the plaintiff’s property. Tanner v. L. & N. R. R. Co., 60 Ala. 621, 642. The question was improper.—L. & N. R. R. Co. v. Bouldin, 110 Ala. 185, 20 South. 325; Birmingham Ry., L. & P. Co. v. Baylor, 101 Ala. 488, 13 South. 793.

It was not improper to allow Avitnesses to testify that they had seen defendant’s engines emit sparks “of unusual size or in unusual quantities.” —B. R., L. & P. Co. v. Hinton, 141 Ala. 606, 37 South. 635. If it be true that this evidence should more properly have been offered as a part of the plaintiff’s case, yet the trial court had the right, in its discretion, to allow its introduction in rebuttal.

“The question to the witness Donahue, “Whether or not these engines, while being operated along that road about that time, threw out any fire, and, if so, ivas it of an unusual size or unusual quantity for a locomotive engine?” was also objected to, upon the ground that the inquiry was not confined to the engine drawing the last train out of Bessemer to Birmingham on the night of the fire, and for testimony not properly in rebuttal. The question was proper, for two reasons: First, a witness for the defendant had testified to the proper equipment of all the engines of the defendant in use on that road at the time of the fire, and the answer to the question tended to contradict and weaken that evidence; and, second, while some of the plaintiff’s evidence tended to show the engine drawing the last train out of Bessemer emitted sparks which caused the fire,' yet the defendant’s evidence tended to show that particular engine emitted no sparks, and upon the whole evidence the jury might have believed and found that one of the defendant’s engines other than that referred to in the objection set out the fire which caused the damage to the plaintiff—in other words, the engine inflicting the injury was not so fully or with such certainty identified as to preclude proof that the defendant’s locomotive generally, at or about the time of the accident, threw out sparks of unusual size or in- unusual quantities.—A. G. S. R. R. Co. v. Johnston, 128 Ala. 283, 29 South. 771.

Charges 4 and 15 were properly refused because they required the jury to be reasonably satisfied by “a preponderance of the evidence.” While it has been held not an error to give such a charge (O’Connor Mining & Mfg. Co. v. Dickson, 112 Ala. 304, 20 South. 413; Behrman v. Newton, 103 Ala. 525, 15 South. 838), the later decisions expressly hold that similar charges are misleading and may be refused (Calloway v. Gay, 143 Ala. 524, 39 South. 277, and cases there cited). In Carter v. Fulgham, 134 Ala. 238, 32 South. 684, a like charge was said to impose upon a plaintiff too high a duty.

Charge 18 was defective in requiring the conscience, instead of the mind, of the jurors to be reasonably satisfied. — L. & N. R. R. Co. v. Hinton, 141 Ala. 606, 37 South. 635.

Charges 28 and 30 are argumentative. The affirmative charge for the defendant was rightly refused, since the evidence was conflicting upon the mateiial issues.

the appellant argues in favor of its assignments of error, based upon the refusal to give the seventh, fifteenth, eighteenth, and twenty-fifth charges, that they asserted the proposition that “the.burden was upon the plaintiff to reasonably satify the jury that the destruction of his property was caused by fire set out bv an engine of the’ defendant;” and that this prposition is sound, We do not doubt the soundness of the proposition ; but it is a sufficient answer to the only insistence made that the identical principle was given to the jury in charge 38, repuested by the appellant.

We have now referred to and commented on each refused charge which counsel for appellant have argued. The statement of counsel that “many other charges requested by the defendant and refused by the court announce correct propositions of law under the issues in this case” is not such .an insistence and argument upon other charges as will lead the court to consider them.. The same thing must be said of the other statement of counsel that “an examination of a large number of charges refused to the defendant will lead to the conclusion that many of these charges were erroneously refused.”

The court below gave 14 charges at the instance of the defendant, which seem to present to the jury as favorably as defendant could have wished the principles of law applicable to the action, and 32 charges were refused. The court will not search for error in this mass of refused charges, unless attention is directed to the charge or charges upon which there is serious insistence.

The foregoing disposes of all the contentions of counsel for appellant, and we find no reversible error.

Let the judgment be affirmed.

Haralson. Dowdell, and Denson, JJ., concur.