Western Railway v. Arnett

HARALSON, J. 1. The defendant demurred to the counts in the complaint, which were overruled. Errors were assigned for the overruling of these demurrers, hut they are not insisted on in argument, and are therefore waived. The samel is true of the ruling of the court in striking pleas 7 and 9, the basis of assignment of error numbered 4. It, may be said as to sustaining the demurrers to pleas 2, 3, and 8, that if -any of the grounds were properly sustained, the assignment of error cannot he allowed, for the reason that, it. is. not, based upon these rulings severally, hut upon them as a whole. Sustaining the demurrer to the Sth plea was good, and, therefore, the ruling sustaining the demurrers to, the three pleas was without error. — Goodwin v. Whitehead, 95 Ala. 409; Kennon v. W. G. T. Co., 92 Ala. 399; Coleman v. Pike County, 83 Ala. 326. 2. Tiie 4th plea was payment, and 5th, that the defendant, before suit commenced on January 5th, 1900, for a valuable consideration, compromised and settled all claim which plaintiff had against, it for said injury. Said receipt is set, out in full in the plea. The plaintiff replied, taking issue on the pleas, and specially, that said alleged compromise wa,s procured by the fraud and misrepresentations of defendant. If the facts set up in this replication are true, the plaintiff, though he executed said receipt and acquittance, was not bound thereby. When, the execution of a written instrument is procured by a misrepresentation of its contents, and the party is induced hv such fraud to sign it when he did not know he was signing such a,n. instrument, and which he did uot intend to sign, the party so defrauded may avoid his signature, because 'of the fraud practiced upon him, notwithstanding he may have neglected to read the instrument, or have it read to him. Bat. he must establish the fraud hv clear and! satisfactory proof. — Beck v. Houppert, 104 Ala. 503; The Bank of [426] Guntersville v. Webb, 108 Ala. 132; Tillis v. Austin, 117 Ala. 262; Folmar v. Siler, 132 Ala. 297; 31 So. Rep. 720. 3. Nor was there error in sustaining the demurrer to the rejoinder of defendant to plaintiff’s special replication to píelas 4 and 5 for the reason, that, the rejoinder sets up that the plaintiff “ought to have known the contents of the said release set, forth in defendant’s plea No. 5,” and with the “duty to know, has never offered to return to defendant the consideration received by him for the execution of said releíase.” Without knowing what the release contained, it was not binding on him. Moreover, the replication set up, that the $25 was a gift by defendant to plaintiff. If so, he was under no1 duty to return it. 4. Plea 14 vais had in that it does not postulate that the plaintiff was negligent in taking hold of the beam. The fact that he took hold of the beam which he ought to have known was loose, was not negligence as a matter of law,'and the'pTea does, not allege it was. negligence in him to do so. The case was tried upon the several counts in the complaint, with general issue thereon, on pleas 6. 10, 11, 12, and 13, and on plaintiff’s replication to pleas 4 and 5. 5. The plaintiff', when examined as a witness for himself, gave an account of the movements of the handcar from which lie was, thrown, and which he was assisting in propelling, the condition the car was in and the position that lid and others occupied on it at the lime. He said that, the parties who operated the crank were standing, two operating the lever in the rear and three; in front; that he was one of the three who were working it in front, and that he was in front of the lever, cranking in the center. At- this point his attorney asked him : “Was that the usual and customary posilion for a man to occupy?” The object of the question, — for which it was proper, — was to show, that plaintiff had not assumed an unusual and dangerous position on the car while he was in discharge of his duty, and not as contended by defendant, to establish a cus [427] tom to justify the doing of an act which Aims negligence per hc. 6. Golden, a Avitness for defendant, testified to being on the car; that he did not remember paying any attention to plaintiff after he got on the car, before he turned tlie lever loose; that he did not knoAv Avhat he aa as doing Avhen lie fell, and was falling at the time he saw him, at Avhich time, Avitness threw up his hands for brakes Avhich had not. been on. before he discovered plaintiff; that he fell like he was going off headforemost., and that plaintiff was falling in front of the lever. Here, the defendanta’s attorney asked him: “If it was possible for him to have fallen as hei did, if he had been behind the lever?” To this question, before it was answered the plaintiff objected, but the witness answered that he could not have fallen if he had been behind the lever, and plaintiff moved to exclude the ansAver which was clone. It called for a. conclusion of the Avitness, and not for a fact, as to a matter proper for the consideration a.nd determination of the jury, on facts stated. That the witness was section foreman, made no difference as to the proper exclusion- of the an-SAver. 7. This witness shown to be fore|ma.n in charge of the car, Avas asked on the. cross, if he made any “objection to the way in which they [the, men operating- the crank or lever, including plaintiff] Avere handling the car, and the way they Avere cranking?” and he answered, “No sir.” ’He further stated that he made no objections to the position they Avere occupying on that occasion, and he gave them no orders to occupy any other position on that occasion. The question- Avas proper on the cross. Golden had testified that he had given orders that none of the men should stand in, front of the car to pull, and the answer was pertinent as going to his credibility, in that he saw him in front and did not object to it.. 8. On the re-direct, examination, defendant asked him: “Did you ever give them any orders on any other day?” An objection Avas pronerly sustained to the. question. The question as propounded embraced any kind of orders, and not especially orders about the position the [428] parties on the car occupied when propelling it. The court cannot be put; in error for disallowing so general and indefinite a question. It should have been limited in its scope to the matter then in hand. The same difficulty befalls the other question following the. last one: “When did you give them any instructions?” ■ 9. We need not refer to the charges which were given and refused, to the giving and refusal of which defendant excepted, except to the 1st, — the general charge1' for the defendant, — which was refused. The first count in the complaint fails to state any cause of action, in that the negligence averred is attributed to one of the section hands, a fellow servant, not acting in the capacity of superintendence. The defect in the brace or beam as alleged in the 3d count, for the purposes for which it. was intended, did not exist, and the. brace for such purposes was not shown to have been defective at. all, so .that it may be said the averments of negligence in this count were not proved. The only evidence relied on to support the 2d count is, that Golden, the foreman, negligently ordered brakes applied without notifying the plaintiff, or the crew that he was going to give the order. The ear, according to plaintiff’s testimony, was within about 30 yards of its destination, the tool house, and after they had gotten within 5ft or 60 yards of that house, they had speed enough to run there with1 the momentum of the car, and the propelling lever was let loose in order for the car to have its own speed to the house. When about 30 yards from the house one Lucius Gibson applied the brake suddenly and plaintiff was thrown off the car. It- was not shown that Golden’s directions for brakes was to apply them in any particular manner, nor that there was a,ny negligence in giving the order. The evidence. therefore, fails to support counts . of the complaint, and the general charge should, as requested, have been given for defendant. Reversed and remanded.