Western Railway v. Turner , 170 Ala. 643 ( 1911 )

ANDERSON, J.

The complaint did not have to aver the name and position of the defendant’s servants in operating the train; this suit being by a person who was not an employee.—Birmingham Ry. v. City Stable Co., 119 Ala. 615, 24 South. 558, 72 Am. St. Rep. 955; Abingdon Mills v. Grogan, 167 Ala. 146, 52 South. 596. Good pleading should require a more specific designation of the place of killing the mule than is set out in counts 2 and 3 of the complaint, but this point, while argued, is not raised by the demurrers. There was evidently an attempt to do so, hut the demurrer as contained in the record says the complaint does not show with sufficient certainty “when” said injury occurred, and the word “where” was evidently intended, hut we must read the record as it appears, and the said counts do aver when the injury occurred. Neither does any demurrer make the point that the act or omission causing the injury is in the alternative or disjunctive.

We do not think the trial court erred in refusing the general charge requested by the defendant. The plain-, iiff introduced evidence tending to show that the mule was on the track some time before being knocked off, and the jury could infer that the mule was seen in time to have stopped the train before striking him. The train was going rapidly, and the engineer was looking ahead, and the jury could infer that the engineer saw the mule far enough back to stop the train. It is true the engineer claims that the mule came suddenly on the track and near a cut and too late to stop the train, but he does not show that the mule could not have been seen if on the track some length of time, as claimed by the plaintiff, and the jury could infer that the mule was on the track some length of time and long enough for the engineer to ha Am discovered him, Avhen far enough back to bring the train to a stop or so check the speed as io enable the mule to escape.

The trial court will not be pnt in error for not permitting the defendant to show how far or how fast the train would go at the point in question of its own momentum and with the steam cut off, for at the time the ruling was made there was no proof that the steam had been cut off and that the train was going of its 'own momentum.

The plaintiff had the right, in rebuttal, to testify that lie u ever paid any witness to come to court and swear in his favor as to any particular fact. It was proven by the defendant that one of the witnesses for the plaintiff made such a statement, but which he denied, and this evidence not only went to the credibility of the plaintiff’s ivitness, but to his own credibility, and he had a perfect right to disprove the charge of bribing or subornating a witness. We do not- wish to commend the form of the question, but the evidence was perfectly legitimate and proper.

There is no merit in the other assignments of error.

The judgment of the circuit court is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and S'omerville, JJ., concur.