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(102 So.)

Gen. Acts 1911, p. 365, Code 1907, § 24 et seq., The defendant sought by plea 2 to interGen. Acts 1919, p. 184, was in dispute, admit-pose the defense that the fertilizer was not ting testimony, that witness had bought fer- tagged as required by the laws of this state. tilizer from defendant in untagged sacks, with- Acts 1911, p. 365; section 24 et seq., Code out identifying it as being part of shipment in 1907; Gen. Acts 1919, p. 184; Steiner & Son question, was prejudicial error. v. Ray, 84 Ala. 93, 4 So. 112, 5 Am. St. Rep. 332; Clark's Cove Guano Co. v. Dowling, 85 Ala. 142, 4 So. 604; Brown v. Adair 104 Ala. 652, 16 So. 439; Kirby v. Huntsville Fertilizer Co., 105 Ala. 529, 17 So. 38,-and by the additional plea "A" sought to interpose the defense of a failure of consideration or breach of an implied warranty. Young v. O'Neal, 57 Ala. 566; Curb v Stewart, Adams & Co., 210 Ala. 341, 98 So. 24.

4. Sales 440 (3)—Testimony of users of fertilizer, that they raised bad crops, held inadmissible, in absence of testimony as to other conditions affecting crops.

In suit on note given for fertilizer, wherein defendant pleaded failure of consideration or breach of implied warranty, testimony of purchasers of fertilizer from defendant, that they had raised bad crops, in absence of testimony as to other conditions affecting crops, was inadmissible.

5. Sales 440 (3)-Testimony, that users of fertilizer did not raise any cotton, held reversible error.

In action on note given for fertilizer, admitting over objection testimony, that users of fertilizer did not raise any cotton, was reversible error.

6, Sales 440 (3)-Evidence, that parties using fertilizer, sold to defendants to resell, raised bad crops, or did not raise any crops, held irrelevant.

In action on note given for fertilizer, which was resold by defendant who had collected for large part thereof, testimony, to establish failure of consideration or breach of implied war: ranty, that people to whom fertilizer was sold raised bad crops, or no crops at all, was ir

relevant.

7. Evidence 215(3)-Letter admitting indebtedness admissible, though part thereof was torn off.

In action on note given for fertilizer, letter, whose contents could be interpreted as admission of indebtedness admitted to have been

written by defendant, offered in rebuttal by defendant, was admissible, though part thereof was gone, and it was not signed.

8. Appeal and error 212-On failure to request affirmative charge, question whether party was entitled thereto is not presented on appeal.

On failure to request affirmative charge as to plea, question whether party was entitled to such charge is not presented on appeal.

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action on promissory note by the Decatur Fertilizer Company against S. J. Walls. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Each of these pleas was defective, and, indeed, plea A does not even allege that the fertilizer was a consideration of the note sued upon. We find, however, that the demurrer addressed to these pleas is also in very general terms, and we are inclined to the view is not sufficiently specific to meet the requirements of our section 5340, Code 1907. As the case must be reversed upon other grounds, we may pass over the question of pleading without decision thereon.

The fertilizer was shipped by the plaintiff, consigned to the defendant, and loaded on the boat at Decatur, Ala. The cause appears to have been tried upon the accepted theory that the sale was completed when the fertilizer was delivered on board the

boat, and will be so considered here. Pilgreen v. State, 71 Ala. 368; McCormick v. Joseph & Anderson, 77 Ala. 236.

[1] The evidence for the plaintiff tended to show without dispute that each sack of fertilizer was tagged when loaded on the boat at Decatur, in compliance with the law. The fertilizer was carried by one continuous route up the Tennessee river to the landing, where it was received by the defendant, and the latter was permitted to show that, at the time the fertilizer was unloaded from the boat onto the landing, there were no tags on the sacks. It is strenuously insisted that,

under the authorities cited above (Kirby v. Huntsville Fertilizer Co. and Steiner & Sons v Ray), this was error in that the law only required the sacks to be tagged at the time of the sale, which was, under the evidence, completed upon the delivery of the fertilizer on board the boat at Decatur. The court below instructed the jury that the essential question of fact as to this defense related to whether or not the sacks were tagged when the fertilizer was loaded on board the boat

Isbell & Scruggs, of Guntersville, for ap- at Decatur, but admitted the proof, that pellant.

these sacks were not so tagged when they

Rayburn, Wright & Rayburn, of Gunters- reached the defendant's landing, as being sufville, for appellee.

GARDNER, J. Appellant sued appellee on a promissory note, the consideration of which note was fertilizer purchased by the defendant from the plaintiff.

ficient, from which the jury might draw the inference that in fact the plaintiff's evidence was untrue to the effect that the sacks bore these tags when loaded on the boat at De. catur.

We are of the opinion the trial court cor

For other cases see same topic and KEY-NUMBER in all Key Numbered Digests and Indexes 102 SO.-3

rectly ruled in admitting this evidence. This was one continuous route on one boat, and we think that the fact the fertilizer bore no tags when received at the landing by the defendant was evidence from which the jury could infer there were no tags when so loaded on the boat, and thus present a disputed issue of fact.

[2] The defendant was also permitted to prove by some of those to whom he had sold the fertilizer that the sacks bore no tags when they purchased the same from the defendant. There being some evidence, as we have just held, from which the jury could infer that the sacks were not tagged when loaded on the boat at Decatur, we are of the opinion this evidence was likewise admissible as corroborative of the testimony of the defendant that they bore no tags when delivered from the boat at the landing. Such is the effect of the holding of this court in Planters' Chemical & Oil Co. v. Stearnes, 189 Ala. 503, 66 So. 699. For this testimony to be admissible, however, it must very clearly appear that the fertilizer purchased was that constituting this particular shipment.

[3] The court, over the plaintiff's objection, permitted the witness Winkles to testify that he got some fertilizer from the defendant that was not tagged. This witness did not know that this was the fertilizer that came from the plaintiff, nor did he know the name of the fertilizer, or from where it came, or how long it had been at the landing before it was carried to his house, nor was it otherwise identified. We are of the opinion this was prejudicial error.

[4, 5] The defendant was in the general

merchandise business, and had purchased this fertilizer, not for his personal use, but for resale, and had immediately sold the same; for a large portion of which he had collected the purchase price. For the purpose of establishing plea A, we assume the defendant offered the testimony of some of

those who had purchased the fertilizer from

him, to the effect that they made a bad crop

that year.

This evidence was offered, evi

dently, upon the theory as set forth in Bell v. Reynolds & Lea, 78 Ala. 511, 56 Am. Rep. 52: International Agri. Chem. Co. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L. R. A. (N. S.) 415; and Abercrombie v. V-C. Chem. Co., 206 Ala. 615, 91 So. 311; but, very clearly, even under these authorities, the evidence, as brought out by the defendant, was inadmissible, and the objection thereto should have been sustained, for nothing appeared

as to the character of the soil, climatic or seasonal conditions, or presence or absence of destructive insects, or the character of cultivation. Without any proof of this character, the witness Hilton was permitted to testify that he had made a bad crop that

year. So, also, to like effect the witness Winkles. The court also erred in permitting the defendant, over plaintiff's objection, to testify that he knew a number of people that used this fertilizer, who did not make any cotton. This testimony was of a prejudicial character, and its admission was reversible

error.

[6] Plea A was interposed as a complete defense, and the defendant's testimony was without dispute, to the effect that he purchased and immediately resold this fertilizer and collected for a large portion thereof. He did not purchase for the purpose of personal use, but for a resale, and very clearly it was not valueless to him. Under these circumstances, therefore, the evidence of the character just discussed was irrelevant, and should have been excluded upon this ground also.

[7] The plaintiff offered in rebuttal a letter or a portion thereof, purporting to have been written by the defendant on February 18, 1921, upon the defendant's stationery which contained his name "S. J Walls, dealer in general merchandise, Columbus City, Ala.," in which letter the defendant stated, evidently in answer to plaintiff's demand for settlement of his account, that he could not "do anything just now," as collections were poor. The defendant admitted writing the letter. It appears, however, that the letter was not complete some of it being torn off-and it was not signed. The defendant objected to the introduction of this letter because of these facts, and to the action of the court in sustaining these objections the written long after the purchase of the fertilplaintiff duly excepted. This letter was izer by defendant and its resale by him, and its contents could be interpreted as an admission of indebtedness; and we are of the opinion that the mere fact that a portion of the letter was gone, and was not signed, did not render it inadmissible as the defendant matters might have affected its probative admitted having written it. While these force, it did not render that portion of the letter inadmissible, and the court committed error in sustaining the objection thereto.

[8] There is much argument in brief of counsel for appellant that the plaintiff was entitled to the affirmative charge as to the plea A, but we find no requested instruction to this effect, and therefore that question is

not presented.

What we have here said, we think, will be reversed, and the cause remanded. suffice for another trial. Let the judgment

Reversed and remanded.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.

(102 So.)

DEMOPOLIS TELEPHONE CO. v. HOOD.

(2 Div. 834.)

(Supreme Court of Alabama. Oct. 23, 1924. Rehearing Denied Nov. 27, 1924.)

1. Negligence 111(1) General averment sufficient where conditions creating duty are shown.

feasors is several, and neither can defend for failure of duty on the part of the other, and a defendant, whose negligence was the sole or concurring proximate cause of the injury, is liable for full compensatory damages.

8. Master and servant 401 - Third party claiming benefits of workmen's compensation law must bring himself within act. Railroad employee, suing telephone company

Where complaint sets forth conditions from for injuries by wires strung across track withwhich duty of care toward plaintiff arose, a gen-out sufficient clearance, was not required to eral averment of negligence is sufficient. negative terms of Compensation Law (Acts 2. Telegraphs and telephones 20(4)-Alle-1919, p. 232, § 32), giving third party benefits gation of unusual height of car on which of such act in certain cases, and telephone plaintiff was standing when injured by wire company, if entitled to benefits thereof, was held unnecessary. required to bring itself within the act.

on

In action against telephone company for injuries to railroad employee standing freight car from contact with wire strung too low for clearance, plaintiff was not required to allege that car was not of unusual height, since defendant's failure, in exercise of reasonable care, to have foreseen danger because of unusual height of car was a matter of defense. 3. Telegraphs and telephones

15(3)-Duty of providing clearance in stringing wires across railroad track stated.

Telephone company, in stringing wires across railroad track, should provide ample clearance, so that wire will not injure tall man standing on high car in common use, its duty not being limited to man of average height riding on car of usual size.

4. Telegraphs and telephones

20(5)-Res ipsa loquitur doctrine applicable to injuries by wire strung across railroad track.

In action for injuries to railroad employee injured while standing on freight car from contact with wire strung across track without sufficient clearance, it will be presumed that telephone company was negligent; doctrine of res ipsa loquitur being applicable.

5. Telegraphs and telephones 15 (3)-Railroad's failure to provide employee with safe place no defense in employee's action for negligence in stringing telephone wires.

In action against telephone company for injuries to railroad employee from contact with wire strung across track without sufficient clearance, railroad's failure to provide employee with safe place to work was no defense.

6. Telegraphs and telephones 15 (3)—Failure of employee of railroad to notify telephone company of overhead wires held no defense in action for injuries to other employee.

In action against telephone company for injuries to railroad's employee from contact with wires strung across track without sufficient clearance, failure of other employee of railroad to notify telephone company of defect in construction of overhead wires, pursuant to working arrangement between company and such other employee, was no defense.

7. Negligence 15- Liability of joint tortfeasors is several.

9. Telegraphs and telephones 20 (1)—Right of action against railroad under federal act no defense to employee's action against telephone company.

In action against telephone company for injuries to railroad employee by wires strung across track without sufficient clearance, right of action on part of employee against railroad Comp. St. §§ 8657-8665) was no defense. under Federal Employers' Liability Act (U. S.

10. Witnesses 369-Testimony that witness was ordered by employer to attend trial held to disclose interest as affecting credibility.

In action against telephone company for injuries to employee of railroad from contact with wires strung across track without sufficient clearance, testimony of another employee road was to pay his way to court, and that he of railroad as witness for plaintiff that railwas ordered there, held to sufficiently disclose interest of witness as affecting his credibility. 11. Telegraphs and telephones

20(5)—Evi

dence as to employer's aid in procuring evidence, and as to claim against employer, inadmissible in employee's action against telephone company.

In action against telephone company for injuries to employee of railroad from contact cient clearance, evidence as to activity of railwith wires strung across track without suffiroad or its employees in aiding to procure filing, by such employee, of claim against the X-ray photograph showing injuries, and as to railroad, held properly excluded. 12. Evidence 380-X-ray photograph held sufficiently identified.

In action for injuries, X-ray photograph held sufficiently identified as the photograph taken of plaintiff's injuries. 13. Evidence 359(4) X-ray photograph taken by expert, explained by expert testimony given by deposition, held admissible,

In action for injuries, X-ray photograph, shown to have been taken by expert, and explained by expert testimony given by deposition, held admissible.

14. Trial 233 (3)-Charge referring to "first count," and to "one or more of the defendant's pleas of contributory negligence," held not objectionable.

The liability for injuries resulting from Charge reviewing in detail the averments concurring negligence of two or more tort- of the complaint, properly placing burden of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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[1] This complaint sets forth the conditions from which the duty of care toward plaintiff arose. Such duty being shown, a general averment of negligence is sufficient. Postal Telegraph Cable Co. v. Jones, 133 Ala. 217, 32 So. 500; Western Union Tele graph Co. v. Jones, 190 Ala. 70, 66 So. 691.

[2, 3] There was no need to aver that the plaintiff or the car on which he was standing was not of unusual height. In placing wires across a railroad track, known to be used as it was used, the duty, to provide ample clearance is not limited to the man of average height while riding on a car of usual size. The duty is to the tall man as well as the low, and whether riding on a high or low car in common use.

[4] If the men and the car on which he was riding reached such unusual or unprecedented height that in the exercise of reasonable care the danger could not have been foreseen, such matter was defensive. The duty is measured by the danger of the situaA wire across a railroad track is manifestly dangerous if hung so low as to catch a man, passing under it with the speed of a train, whether on the main line or a spur track. One element of the danger is that a wire does not readily attract attention. Ample clearance may be easily provided without

Appeal from Circuit Court, Marengo Coun- tion. ty; John McKinley, Judge.

Action for damages for personal injury by Wiley S. Hood against the Demopolis Telephone Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Exception was taken by defendant to this substantial cost. There is, in such case, the portion of the court's oral charge:

"But if you are reasonably satisfied from the evidence in this case of the truth of the facts alleged in the first count of the complaint, that would make out a prima facie case which would entitle the plaintiff to recover in this case, unless the defendant has established to the reasonable satisfaction of the jury, by the evidence in this case, one or more of the defendant's pleas of contributory negligence."

B. F. Smith, of Birmingham, and Huey & Welch, of Bessemer, for appellant. Pettus, Fuller & Lapsley, of Selma, and I. I. Canterbury, of Linden, for appellee.

BOULDIN, J. The action is to recover The comdamages for personal injuries. plaint shows that defendant's telephone wire was strung across and over a railroad track, and that plaintiff, in course of his employment, had occasion to pass under the wire, and, in so passing, while standing erect upon the top of a freight car, he came in contact with the wire, and was injured.

It is averred that the wire was so low as not to clear a man of plaintiff's height, standing erect on the top of a car of the size on which he was riding.

After setting out these conditions, it is charged in general terms that the defendant negligently constructed said wire too low, or negligently allowed the same to become too low, which negligence proximately caused plaintiff's injuries.

duty to ascertain what is a sufficient clearance. A failure so to do, and the placing of a wire in such position that a man rightfully there comes in contact with it, raises a presumption of negligence. The doctrine of res ipsa loquitur applies. Ala. City G. & A. Ry. Co. v. Appleton, 171 Ala. 324, 54 So. 638, Ann. Cas. 1913A, 1181. The complaint disclosed that at the time of his injury plaintiff was an employee of Southern Railway Company, and in the discharge of his duties for that company in the use of the These facts did not make it necestrack. sary for the plaintiff to aver or prove that the Southern Railway Company had a right. of way prior and superior to that of the defendant.

The construction and operation of a railroad and telephone line may rightfully be had over the same ground, so long as the one does not infringe upon the right of the other. The duty to plaintiff did not grow out of his relation to Southern Railway Company. That relation was merely the occasion which brought plaintiff within the class of persons rightfully passing under the overhead wire. The duty to provide against danger was a duty to plaintiff personally, and not to his employer, so far as this action goes. case is not different in principle from that of stringing a wire over or a public highway. In the latter case the duty to provide against danger is due to any person in the use of the highway, while in the case at

across

The

(102 So.)

bar the duty is to any person of the class rightfully using the right of way as it was used.

[5, 6] It follows that no failure of duty on the part of Southern Railway Company to provide a safe place of work for its employees would acquit the defendant of its duty in the premises. If there was a working arrangement between this defendant and any employee of the railroad company, other than this plaintiff, by which the defendant was to be notified of any defect in the construction of its overhead wires, such arrangement would merely constitute such employee the defendant's agent in that regard, and any negligent failure to give notice or remedy the defect would be a failure of duty on the part of defendant.

[7, 8] The liability for injuries resulting from concurring negligence of two or more tort-feasors is several. Neither can defend for the failure of duty on the part of the other. The sole question is: Was the negligent failure of duty on the part of the defendant the sole or concurring proximate cause of the injury? If so, the defendant becomes liable for full compensatory damages. The trial court very properly, in such case, refuses any testimony tending to divert the attention of the jury to some wrongful act or negligence of a party not sued. Our Workmen's Compensation Law, Acts 1919, p. 206, section 32, makes provision in certain cases for a third party to have its benefits. [9] Like all claims under part 2 of that act, the claimant must become the actor and make a showing of his right to its benefits. It was not necessary for plaintiff to negative the terms of section 32 of the Compensation Act. Neither would a right of action against the Southern Railway Company under the Federal Employers' Liability Act (Comp. St. §§ 8657-8665) constitute any defense to this action.

[10, 11] The evidence, without dispute, shows that plaintiff was, at the time of his injury, an employee of the Southern Railway Company, and that certain of plaintiff's witnesses were such employees. The witness Jones testified that he supposed that company was to pay his way to court, and that he was ordered there. This sufficiently disclosed any interest of the witness as affecting his credibility. The further efforts to show voluntary activity of the railroad company or its employees in aiding to procure the X-ray photograph, or that plaintiff had filed a claim against that company, tended to divert the issue to one of liability of that company for the injury. There was no error in refusing this testimony.

An X-ray photograph was admitted in evidence for plaintiff. The evidence as to the taking of the photograph and what its reading disclosed was by deposition. This testimony tended to show the photograph was taken by a qualified expert; that it was

read by the witnesses qualified by experience and training to do so; and that it disclosed a fracture of the second lumbar vertebra.

[12, 13] Objection is made to the photograph as evidence upon two grounds. (1) It is not sufficiently identified as the photograph so taken, and testified about by the witnesses. (2) That the reading of an X-ray photograph is the work of an expert; that a jury cannot read it; and that it should be admitted only along with the testimony of a competent reader of such photographs, pointing out to the jury the features showing the injury in question.

The X-ray photographer testified to an identifying number placed by him thereon, with the date. The photograph is made part of the record. An examination discloses the number "490," and "6-4-23," standing for June 4, 1923. These marks, in connection with the testimony, are sufficient on the question of identification.

The evidence afforded by the advance of science, in making discovery of the hitherto unseen and unknown, is generally admitted in American jurisprudence. The reason is obvious. Accordingly, X-ray photographs showing the bony structure of the human body, when proven to be taken by a competent person, and properly identified, are admitted in evidence for the purpose of showing injuries or the presence of foreign objects. Jenkins v. School, 90 W. Va. 230, 110 S. E. 560, 22 A. L. R. 323; Covington v. Bowen, 191 Ky. 376, 230 S. W. 532; Prescott & N. Western Ry Co. v. Franks, 111 Ark. 83, 163 S. W. 180, Ann. Cas. 1916A, 773, and note p. 776.

Members of this court, with the aid of such background of light, and probably with about the same skill available to the jury, have examined the photograph in question. It reveals clearly enough the bony structure of the trunk, including the bones of the pelvis, the ribs, and the backbone; shows the outline of the several vertebræ with their processes. We cannot, without aid, discover with any assurance the particular appearances indicating the fracture testified to by the expert witnesses. We are persuaded such photographs may be much more valuable evidence when explained to the jury from the stand by a person skilled in reading them, giving the angle at which they were produced, and the special appearance of the part involved indicating injury vel non. We think, however, this photograph admissible in connection with the expert testimony given by deposition. At least, it shows there was a photograph, giving, with all the accuracy of nature's laws, the outlines mentioned. This fact is a circumstance from which an inference may be drawn favorable to the opinion given by those entirely familiar with the details of the human anatomy, and skilled in detecting injuries thereto by making and reading such photographs. Any

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