Moody v. Alabama Great Southern Railroad

McCLELLAN, J. This is the second appeal in this case. On the former appeal it was held that the evidence was free from conflict or adverse inference to the negation of all negligence on the part of defendant’s trainmen in respect of the killing of plaintiff’s cow, and hence that the general affirmative charge with hypothesis should have been given for defendant.—Ala. Gr. So. R. R. Co. v. Moody, 90 Ala. 46. When the case came on for trial again below, the court was of opinion that the evidence adduced was the same as upon the first trial, and therefore charged affirmatively for the defendant. A verdict was returned accordingly, and from the judgment thereon this appeal is prosecuted. This court was at first of the opinion that the evidence on the two trials was the same, that it showed without conflict that defendant was not negligent, and that the trial court properly gave the affirmative charge for defendant. We have come to a different conclusion, however, on the application for rehearing, and the former opinion on this appeal is withdrawn. On the last trial the witness John Hamner testified to facts from which the jury might legitimately have inferred that the animal did not come upon the track and stop so immediately in front of the engine that it was impossible to avoid striking her, as deposed to by the trainmen, but that, to the contrary, it got on the track some distance in front of the engine, and ran along it for sixty yards before being overtaken and killed by the train. This evidence was not in the case on the first trial, or, at least, vras not presented here by the bill of exceptions taken on that trial. If the jury believed Hamner, they could not believe the account given of the accident by the engineer; and, believing Hamner, they had a right to infer that defendant’s employes were negligent in not stopping the train, or so slackening its speed' as to admit of the escape of the animal. The charge given by the trial court deprived the jury of this right, and was therefore erroneous. M. & B. R. R. Co. v. Ladd, 92 Ala. 287. The statute provides that “ all objections to the admissibility of the entire deposition in evidence must be made before entering on the trial, and not afterwards, unless the matter is riot disclosed in the deposition, and appears after the commencement of the trial,” Code, § 2810. It is in557 sisted for appellant that this statute “means a deposition taken pursuant to section 2802 of the Code,” and has no application to or bearing upon a paper filed in the cause as a deposition, and offered on the trial as such, and which is in the form of a deposition, but which appears on its face not to have been regularly taken in that, for instance — the present case — the preliminary affidavit has not been made as required by the section last referred to. This construction, we think, is entirely too narrow. Its adoption would lead to the practical emasculation of the statute quoted first above, since objections to entire depositions are, in many if not most instances, based upon some infirmity of the deposition resulting from non-conformity to section 2802. We apprehend the true interpretation of the act to be such as to make it applicable to every paper filed in a cause which is in the form of a deposition taken therein, wholly irrespective of the defects it discloses in the manner of taking it. In one sense no paper in this form which the court adjudges to be inadmissible is “a deposition,” and the judgment of exclusion is essentially a judgment that it is not a deposition; but manifestly this is not the sense of the word as used in section 2810, else the operation of that section would be confined to depositions regularly taken in all respects, but containing no evidence relevant to the issue — a case which could rarely occur and in which, when it does occur, the statute, if it applies at all, might be easily avoided by making separate motions to exclude different parts of the deponent’s testimony. We are clear that a deposition, the infirmity of which lies in the absence of the affidavit required by section 2802, should not be excluded on a motion made after the' commencement of the trial; and hence that the court’s action on the objection made by plaintiff, after the trial had been entered, to the deposition of the witness Ham as an entirety was free from error. It does not appear of this record that the court prevented any line of argument on the part of plaintiff’s counsel as is here insisted. What was done is thus stated in the bill of exceptions: “Plaintiff’s counsel, in addressing the jury in his argument, stated, ‘the witnesses, whose depositions had been read and who were employes of the defendant, were bound to testify as they did; that if they had testified differently they would have been promptly discharged.’ Counsel for defendant objected to this argument, and asked the court to rule it out, which motion the court granted.”- This action of the court was not with reference to counsel’s further argument, but solely upon and with reference-to a state [558] ment wholly unsupported by evidence, which had already been made in argument. That this statement was improper aud properly ruled out by the court, we do not doubt. E. T. Va. & Ga. R. R. Co. v. Bayliss, 75 Ala. 471; L. & N. R. R. Co. v. Orr, 91 Ala. 548. It is not conceivable tbat this action of the court could have denied to plaintiff the benefit of any legitimate argument bis counsel might thereafter have seen proper to advance. Eor the error pointed out the judgment is reversed, and the cause remanded.