Alabama Great Southern Ry. Co. v. Yount

MoCLELLAN, J. — The case went to the jury on the third count, alone, and on pleas 1, 2, and 3 as amended. This count declared on negligence in respect to the way, works, machinery, etc., in the usual form, the particular aspect being that the notches in the quadrant, designed to hold the latch in place, were worn. The injuring agency, and that without dispute, was the flying out of the reverse lever of a locomotive, crushing, etc., plaintiff’s foot, he being then the engineer in control of the engine. The reverse lever controls the forward or backward motion of the engine. It works in practically a semicircle over what is called, mechanically, a quadrant. The retention of this lever at a given point on the — 543 — quadrant is effected by means of a latch,” which is pressed by a spring against the quadrant and into notches therein. Pleas 2 and 3 as amended set up this as contributory negligence of the plaintiff: That he negligently placed his foot in such position as to be in the way of injury by the flying out of the reverse lever. Again, in the latter plea, that he negligently operated the .engine in this: Improperly fastened the “latch” in the quadrant, or negligently ran the engine Avith dry (unoiled) valves. All of the errors assigned and argued here relate to rulings in respect to evidence and to special instructions refused to defendant (appellant). . On this record, it is clear that defect vel non, as described in count 3, was a jury question. It is likewise clear that contributory negligence vel non, as charged in pleas 2 and 3. as amended, Avere matters for the jury’s decision. There Avere tendencies in the evidence to support the respective averments of the pleadings in the particulars just stated. Appellant insists that the affirmative charges — that concluding generally and that directed to a finding on the third count — requested for it, should have been given. The chief and only debatable ground for this insistence is that there Avas no evidence tending to support the essential averment, to sustain Avhich, the plaintiff, in such actions as this, always has the burden, that the defect described arose from, or had not been discovered or remedied, OAving to the negligence of the master or of some person for whose derelictions the master is responsible. There was evidence from which it might have been inferred that the notches on the quadrant were “worn” from use. There was, of course, foundation in the evidence justifying a contrary inference, as well as tending to show that no defective conditions ex544 istecl at ali. Given the first stated inference, it was, in consequence, likewise open to the jury to find that the alleged defect, produced by wearing from use, had existed for such time as the failure to discern it, as might have been done by reasonably diligent care and inspection, constituted such want of care, in the premises, as the statute prescribes. This court ruled, upon a like matter, in Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115, 42 South. 96, and held that the question was for the jury. The affirmative charges mentioned were properly refused. Another feature of the argument for appellant, applicable to several of the errors assigned, in respect of rulings in excluding evidence, may be here considered. A number of questions, propounded by defendant, to witnesses on their examination were not objected to by plaintiff. After the questions were answered, motion was made, and sustained by the court, to exclude the answers from the jury’s consideration. It is insisted that the court erred in these particulars because plaintiff did not object to the question, but permitted it to be answered, thereby evincing a speculation, whether favorable or unfavorable, on the answer of the witness. The rule invoked for appellant has no field of operation where the court, on motion whenever made, excludes evidence previously improperly admitted. The rule’s purpose is directed against one who is asserting error because of a failure of the court to exclude evidence given in response to a question to which appellant had not seasonably objected. The inquiry here then, is whether the evidence excluded on plaintiff’s motion was inadmissible, and, if so, no errors, in that regard, to appellant’s prejudice were committed. The first assignment assails the action of the court in refusing to exclude the testimony of Hammond, — 545 — plaintiff’s witness, wherein he testified that he operated engine 198 about July 16, 1907, the date of tbe injury here complained of, and that tbe reverse lever flew ont on one occasion when be was operating tbe engine. On tbe cross, be said that tbe flying out of tbe lever, referred to by him, was ‘about 6 or 10 days after tbe accident in which plaintiff was injured.” We think this matter was properly retained for tbe jury’s consideration.— Jones on Evidence (2d Ed.) §§ 139, 156, 167, and notes. Its immediate tendency, though of course its probative force was for 'the jury to determine, was to shoAV tbe alleged condition of tbe quadrant. Tbe similarity betAveen the described action of tbe lever when Hammond, Avithin 6 or 10 days, was operating tbe engine, and its action Avhen plaintiff Aims injured thereby, was a circumstance tending, if credited, to show tbe defectiATe condition of tbe quadrant on tbe latterly mentioned occasion. Whether like conditions, in respect of load on the locomotive, or oil in tbe valves, or tbe general operation of tbe locomotive, prevailed when each man Avas operating tbe engine was matter for tbe cross-examination to develop. In this connection counsel insist that if this evidence of Hammond was properly retained in tbe case, then tbe testimony of J. M. McCarty, defendant’s witness, Avherein be was, on objection of plaintiff, not allowed to answer this question propounded by defendant : “Did you have any trouble with tbe quadrant-latch?” If it is assumed that like reason to that rendering proper tbe overruling of defendant’s motion to exclude Hammond’s testimony, as stated before, required the allowance of tbe question to McCarty, just quoted, the bill, by recital, takes tbe point out of tbe assignment based on the disallowance of tbe question. The recital is: “The witness subsequently testified that during tbe time be worked on engine 198 tbe lever did not — 546 — fly out with him.” The time he ran the engine was “in July, or the first of August,” 1907. The questions propounded, on the cross, by defendant to Hammond, were properly disallowed. No ground of the objections thereto appear to have been stated by plaintiff. One of the questions was based on an unfounded assumption of what the witness had already-testified. The other questions sought to elicit evidence in reference to his failure to report the action of the engine, in respect to the lever, when operated by him. There was then no evidence in the case "that such was his duty, even if his conclusions in the premises were admissible for any purpose. Assignments 6, 7, 8, 9, and 10 relate to rulings disallowing questions propounded by defendant to its witness Morgan. What purported to be, according to defendant’s evidence, the quadrant described in the count was before the jury. The essence of the jury’s duty was to decide whether it was in a defective condition when plaintiff was injured. . It was the effort to show by Morgan, an expert, that this quadrant was in “good condition,” that its notches were “not much worn,” that it was, on the trial, in a “good, safe condition,” that it was, on the occasion, in “first-class condition.” Morgan, having testified to facts tending to show that the quadrant was as it was when plaintiff was injured, further said “that he tested the quadrant and the latch to see if they were case hardened and if they had the right radius, and to see if they were in good condition; thai he found by the test that they were properly case hardened, had the right radius,” etc. A careful reading of the entire testimony of this witness discloses the fact that the matters complained of in these assignments were without prejudice to defendant because fully covered by testimony of the witness admitted in evidence. — 547 — The rulings assailed in assignments 11 and 12 were innocuous. The matter excluded ivas covered by other testimony of the witness. The answer of the witness Fleming, quoted in assignment 13, was not responsive to the question, and was well excluded, because illegal. The question to the witness Fleming, set out in assignments 14 and 15, obviously invited a purely speculative answer. Besides, the witness, testifying as expert, stated the conditions and causes productive of the flying out of a reverse lever bn a running engine. Whether to place the feet in front of the lever on the quadrant is a dangerous thing for an engineer to do was a conclusion, and the question to that end (assignment 16) was well disallowed. That was a matter within the issues on plea 2, and it was for the jury to determine whether the act indicated was dangerous. Whether so or not was not within the legitimate field of expert opinion in the case. Assignment 17 is similar to assignments 6 to 10, and is, like them, without merit. The question quoted in assignment 20 was properly allowed, on the theory that the alleged declarations of the witness Fleming to Hammond tended to show Fleming’s bias or interest in the cause. Charge 9 denied the right to find from the evidence that the defendant, or some person for whose omission in that regard the defendant was responsible within the liability act (Code 1907, § 3910), was negligent in respect of remedying the defect if it was discovered. Furthermore, the charge is . not clear. Again, it is' by no means certain that the charge does not exclude the idea that negligence intervened in the failure to discover the defective condition described in the count. 'In addition, the charge might have misled the jury to believe — 548 — that the defendant, itself and alone, could he negligent in the premises, whereas it may he, of course, responsible for the derelictions of those charged with duties, in the premises, by defendant. Charge 11 was bad, and. was well refused. Besides being involved, it would avoid the imputation of negligence by reasonable belief of careful, prudent servants, so engaged, of the fitness, etc., of the engine for service. Reasonable or honest belief is not a factor in the ascertainment vel non of negligence. — L. & N. R. R. Co. v. Young, 153 Ala. 232, 237, 45 South. 238, 16 L. R. A. (N. S.) 301. It can never be error, this court has held, to refuse a charge declaring there is no evidence of a fact stated in the instruction. — Tutwiler v. Burns, 160 Ala. 386, 49 South. 455, 458. Every assignment urged in argument has been considered. No error appears. The judgment must be affirmed. Affirmed. Dowdell, C. J., and Simpson, Anderson, Mayfield, and Sayre, JJ., concur.