Southern Railway Co. v. Wilson

SHARPE, J. To the complaint as it stood after the same was altered by amendment and by the striking out of parts on defendant’s motion, the demurrer raised no good objection. Whether the eighth count was too general in its averment of negligence is not in question, since the only demurrer to it included the ninth count which was sufficiently specific in that regard. It was not improper for the complaint to show that the cotton when burned was on defendant’s platform, and it was [522] not essential to the statement of a prima facie canse of' action for the complaint to aver it ivas so-located by defendant’s consent, or to otherwise account for the presence of the cotton on the platform; for there is no presumption that it was there through the plaintiff’s wrong- or under circumstances relieving defendant of the geiL eral duty which under ordinary circumstances the law imposes on all persons, and which requires of each the observance of ordinary care for the avoidance of injury to the property of another. The averments which in each count purport to charge defendant with negligence, sufficiently imply that it ivas under, and was guilty of a violation of, such duty, though they may be insufficient to show it ivas under the stricter obligation of a common carrier, or of a warehouseman. Under the general issue, defendant had the right to prove all it could have proved under pleas 2, 4 and 5, and, therefore, the striking out of those jileas involved no injury. - Plaintiff was not hound to anticipate negligence on the part of defendant. In the absence of notice to him that the engine was in fact so constructed, equipped and operated,' as to endanger the cotton, the mere placing- and keeping of the cotton on the platform cannot be held as a matter of law to have been negligent conduct on his part, or to have been the proximate cause of the-loss. — Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454; G. & S. F. R. R. Co. v. McLean, 74 Tex. 646; 12 S. W. Rep. 843; T. & P. R. R. Co. v. Levine (Tex. Ct. App.) 29 S. W. Rep. 514; 13 Am. & Eng. Ency. Law, 487. The-contrary was assumed in pleas 3, C, and 7, and, therefore, treating them as pleas of contributory negligence, they are each subject to the demurrers. So much of these pleas as denied the complainant’s averments of negligence was covered by the plea of the general issue. The cost of repacking- the cotton, after the fire, was an element of damages as to which plaintiff was properly allowed to testify, and having testified that written memoranda of the value of the bagging used on the cotton, of the cost of repacking it, and of the weights of [523] the cotton before and after the fire, was made by him at the time of repacking,.and was known to him to be correct, it was permissible for him to refer to that writing for the purpose of refreshing his memory when testifying. — 3 Mayfield’s Digest, 526, § 1761. There are numerous assignments of error based on the admission of evidence which will not be referred to in detail, but which have all been considered and found to afford no ground for reversal. The evidence to which they have reference has all some relevancy to the issues of negligence vel non, or to the question of damages, or to show, within the latitude allowable in cross examination, bias on the part of some witness examined by defendant. If it be conceded that some of it adduced after defendant had rested in its introduction of evidence, was not strictly in rebuttal, still the order of its admission was within the discretion of the court. — 8 Ency. PL & Pr., 132. Defendant was not entitled to have the jury instructed in the terms of either of its refused charges, In view of the record, including the evidence, we are unable to determine that the court erred in overruling, after reducing the amount of the verdict, the motion for a new trial. Judgment affirmed.