Southern Railway Co. v. Hundley

ANDEBSON, J. The complaint was not subject to ■the demurrers interposed, which were properly overruled by the trial court. Pleas 2, 3, 4, 5, and 6, as amended, were subject to the demurrers, which were properly sustained. The trial court erred in sustaining the demurrer to the seventh plea. It was a question for the jury as to whether or not it was dangerous for the plaintiff to have gone upon the steps without holding the rail, as the plea avers that the train was going too fast for her to attempt to alight therefrom, that if she had held to the rail she would not have fallen when the train jerked, and that she negligently failed to hold the rail and thus proximately contributed to her injury. The defendant was therefore entitled to submit the facts set up in the seventh plea to the jury, and, if they were proven, she was guilty of contributory negligence. Nor can we hold that defendant got the benefit of plea 7 under pleas 8 and 9, as these last pleas go further, and aver that plaintiff jumped while the train was running, which had to be proved; yet there was no such averment in the seventh plea, and it set up contributory negligence of failing to hold the rail under conditions therein described, and not in jumping from the moving train. There was no error in overruling the objection of defendant to the interrogatories propounded under the statute to the defendant because the jurat to the affidavit was by the deputy clerk in his own name, and not in the name of the clerk. This was a performance of a duty authorized under section 933 of the Code of 1896, and in the absence of proof to the contrary we will presume that he was a de jure deputy. — Minniece v. Jeter, [386] 65 Ala. 222. But we do not mean to hold that the affidavit would not he good if made before a de facto deputy clerk.- — Joseph v. Cawthorn, 74 Ala. 411. Although it was held in the case of Walker v. State, 107 Ala. 5, 18 South. 393, that perjury could not be predicated upon an oath administered before a mere de facto deputy clerk, we have a line of decisions holding that- clerks of a probate judge can only take acknowledgments in the name of the probate judge; but that rule does not apply to the question at issue, and the reason for the application of the other rule as to acknowledgments is given in the case of Pioneer Savings & Loan Co. v. Barclay. 108 Ala. 155, 19 South. 308, and which proceeds upon the •theory that the power to take acknowledgments is given under section 993 of the Code of 1896 to a certain class, and, being judicial, could only be exercised by the clerk in the name of the probate judge, notwithstanding the Legislature delegated the right to do so to his clerk. The act here was ministerial. . Charge 3, requested by the defendant, should have been given. It was supported by some of the evidence, and was not, therefore, abstract, and, if the jury believed the facts hypothesized, there was a variance. It may be that the complaint did not have to particularize as. it did; but, having done -so, the proof should show that she was jerked off when preparing to alight, and not after she had partially alighted or was actually getting off the train. - The trial court did not err in refusing charges 1, 8, and 9, requested by defendant. Counsel for appellant contends that they should have been given, because there was no proof that the defendant was a corporation. It is true that section 1803 of the Code of 1896 applies to suits by corporations and partners, and not to actions against them. But under a well-established rule of pleading, when an action is brought against a corpora [387] tion, and it appears by attorney and pleads the general issue, such plea is a denial of the wrong charged, but it is an admission of'the corporate character of the defend ant, and relieves the plaintiff from having to prove that fact. — Zealy v. Birmingham Ry. & Elec. Co., 99 Ala. 579, 13 South. 118; Oxford Iron Co. v. Spradley, 46 Ala. 98. The trial court properly refused charge 10, requested by the defendant. If not justified in doing so for other reasons, it is bad for pretermitting the fact that plaintiff was contradicted upon some material fact. A contradiction as to an immaterial fact does not affect the credibility of a witness. The trial court did not err in refusing charges 12 and 13, requested by the defendant. Charge 14, requested by the defendant, should have been given. If the train stopped a sufficient time to enable the passengers to alight, the plaintiff cannot complain that it was started with a jerk, unless, of course, it was known by defendant’s servants that she was on the steps or platform preparing to alight, but which fact is not presented by the pleading. The charge may not be covered by any of the special pleas, but is embraced in the general issue. The complaint is based upon a sudden jerk before the train came to a standstill. If the train came to a stop a reasonable time before the jerk, then the complaint was not proven. The charge was not abstract, as the defendant’s testimony shows that the train stopped long enough for the passengers to alight, and that there was no slacking and jerking before it finally stopped. The judgment of the circuit court is reversed, and the cause is remanded. Tyson, C. J., and Haralson and Simpson, JJ., con- . cur.