Louisville & Nashville Railroad v. Perkins , 165 Ala. 471 ( 1910 )

SIMPSON, J.

— This is an action for damages on account of the death of plaintiff’s (appellee’s) intestate, and has been before this court twice before. — L. & N. R. Co. v. Perkins, 144 Ala. 325, 39 South. 305; L. & N. R. R. Co. v. Perkins, 152 Ala. 133, 44 South. 602.

1. As the answer to the questions to-the witness Burke in regard to instituting proceedings for perjury were favorable to the defeudant, if there ivas error in overruling objections to the questions, it was without injury. — L. & N. R. R. v. Banks, 132 Ala. 485, 31 South. 573.

2. For a similar reason, and because the objection was not made until after the answer to the question in regard to bringing the witness from Montgomery to Greenville in irons, there was no reversible error in overruling objections made. The answer was that witness had nothing to do with it.

3. There was no error in overruling the objection to the question to the witness Shade Henderson, Jr.: “Was he at your house on Sunday?” etc. (referring to the witness Darley). ■ In the written statement as to what Darley would swear, it was averred that he saw Dykes at the house of Henderson on the day referred to; and it was permissible to show by other witnesses that he was not at said house on said day. This was simply showing other facts inconsistent with his statement, and was not impeaching the witness without laying a proper predicate. — So. Ry. v. Hobbs, 151 Ala. 337, 353, 43 South. 844.

4. The court erred in overruling the objection to the questions to the witness Shade Henderson as to whether Oscar Darley knew that this suit was pending, etc. ■ A witness cannot testify as to the cognitions of another. —Bailey v. State, 107 Ala. 161, 153, 18 South. 234; Ashford et al. v. Ashford et al., 136 Ala. 633, 640, 34 South. 10, 96 Am. St. Rep. 82; Central of Georgia Ry. v. Martin, 138 Ala. 533, 547, 36 South. 426; Braham v. State, 143 Ala. 29, 42, 38 South. 919; Delaney v. State, 148 Ala. 587, 42 South. 815; West Pratt Coal Co. v. Andrews, 150 Ala. 369, 376, 43 South. 348. There is an expression in the case of Abbett v. Page, 92 Ala. 575, 9 South. 333, which seems contrary to the above authorities, to wit, that “a person’s knowledge of a thing is a fact to which a witness may testify”; hut, besides the fact that the matter therein referred to was a matter of common observation, the authorities therein referred to relate to a different subject, and the numerous later decisions of our court have settled the principle as above announced.

5. There was no error in the refusal of the court to exclude the remarks of counsel for the plaintiff in argument. While they were not strictly pertinent to the issues as made by the pleading, yet no fact was asserted; but simply an argument was made and an inference drawn.

6. Charge AS and charge 30, requested by the defendant, were argumentative, and properly refused.

Charge U was properly refused. The court cannot be required to charge the jury that there is no evidence of a particular fact.

As this case must be reversed for the error mentioned, it is not necessary to pass upon the refusal to grant a new trial.

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

Reversed and remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.