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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. 4. Sales Paw 440(3)—Testimony of users of fer. 332; Clark's Cove Guano Co. v. Dowling, 85

tilizer, that they raised bad crops, held inad- Ala. 142, 4 So. 604; Brown v. Adair 104 Ala. missible, in absence of testimony as to other 652, 16 So. 439; Kirby v. Huntsville Fertilconditions affecting crops.

izer Co., 105 Ala. 529, 17 So. 38,—and by the In suit on note given for fertilizer, wherein additional plea “A” sought to interpose the defendant pleaded failure of consideration or defense of a failure of consideration breach of implied warranty, testimony of purcbasers of fertilizer from defendant, that they breach of an implied warranty. Young v. bad raised bad crops, in absence of testimony O'Neal, 57 Ala, 566; Curb v Stewart, Adams as to other conditions affecting crops, was in- & Co., 210 Ala. 341, 98 So. 24. admissible.

Each of these pleas was defective, and, in. 5. Sales Eww 440(3)–Testimony, that users of deed, plea A does not even allege that the fertilizer did not raise any cotton, held re- fertilizer was a consideration of the note versible error.

sued upon. We find, however, that the deIn action on note given for fertilizer, ad- murrer addressed to these pleas is also in mitting over objection testimony, that users of very general terms, and we are inclined to fertilizer did not raise any cotton, was reversi- the view is not sufficiently specific to meet ble error.

the requirements of our section 5340, Code 6. Sales Ow440(3)-Evidence, that parties us.

1907. As the case must be reversed upon ing fertilizer, sold to defendants to resell, other grounds, we may pass over the quesraised bad crops, or did not raise any crops, tion of pleading without decision thereon. held irrelevant,

The fertilizer was shipped by the plaintiff, In action on note given for fertilizer, which consigned to the defendant, and loaded on was resold by defendant who had collected for the boat at Decatur, Ala. The cause aplarge part thereof, testimony, to establish fail-pears to have been tried upon the accepted ure of consideration or breach of implied war: theory that the sale was completed when ranty, that people to whom fertilizer was sold the fertilizer was delivered on board the raised bad crops, or do crops at all, was ir- boat, and will be so considered here. Pil. relevant.

green v. State, 71 Ala. 368; McCormick v. 7. Evidence 215(3)—Letter admitting indebted Joseph & Anderson, 77 Ala. 236.

ness admissible, though part thereof was torn [1] The evidence for the plaintiff tended off.

to show without dispute that each sack of In action on note given for fertilizer, letter, fertilizer was tagged when loaded on the whose contents could be interpreted as ad- boat at Decatur, in compliance with the law. mission of indebtedness admitted to have been written by defendant, offered in rebuttal by de- The fertilizer was carried by one continuous fendant, was admissible, though part there- route up the Tennessee river to the landing, of was gone, and it was not signed.

where it was received by the defendant, and

the latter was permitted to show that, at the 8. Appeal and error 212 - On failure to time the fertilizer was unloaded from the request affirmative charge, question whether boat onto the landing, there were no tags on party was entitled thereto is not presented

the sacks. It is strenuously insisted that, on appeal.

On failure to request affirmative charge as under the authorities cited above (Kirby v. to plea, question whether party was entitled Huntsville Fertilizer Co. and Steiner & Sons to such charge is not presented on appeal.

v Ray), this was error in that the law only

required the sacks to be tagged at the time Appeal from Circuit Court, Marshall Coun- of the sale, which was, under the evidence, ty; W. W. Haralson, Judge.

completed upon the delivery of the fertilizer

on board the boat at Decatur. The court beAction on promissory note by the Decatur low instructed the jury that the essential Fertilizer Company against S. J. Walls. question of fact as to this defense related to Judgment for defendant, and plaintiff ap- whether or not the sacks were tagged when peals. Reversed and remanded.

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.

ficient, from which the jury might draw the

inference that in fact the plaintiff's evidence GARDNER, J. Appellant sued appellee on was untrue to the effect that the sacks bore a promissory note, the consideration of these tags when loaded on the boat at De. which note was fertilizer purchased by the catur. defendant from the plaintiff.

We are of the opinion the trial court cor. am For other cases see same topic and KEY-NUMBER in all Key Numbered Digests and Indexes 102 S0,-3

error.

rectly ruled in admitting this evidence. This year. So, also, to like effect the witness was one continuous route on one boat, and Winkles. The court also erred in permitting we think that the fact the fertilizer bore no the defendant, over plaintiff's objection, to tags when received at the landing by the de- testify that he knew a number of people that fendant was evidence from which the jury used this fertilizer, who did not make any could infer there were no tags when so load-cotton. This testimony was of a prejudicial ed on the boat, and thus present a disputed character, and its admission was reversible issue of fact.

[2] The defendant was also permitted to [6] Plea A was interposed as a complete prove by some of those to whom he had sold defense, and the defendant's testimony was the fertilizer that the sacks bore no tags without dispute, to the effect that he purwhen they purchased the same from the de chased and immediately resold this fertilizfendant. There being some evidence, as we er and collected for a large portion thereof. have just held, from which the jury could He did not purchase for the purpose of perinfer that the sacks were not tagged when sonal use, but for a resale, and very clear. loaded on the boat at Decatur, we are of the ly it was not valueless to him. Under these opinion this evidence was likewise admissible circumstances, therefore, the evidence of the as corroborative of the testimony of the de- character just discussed was irrelevant, and fendant that they bore no tags when deliver- should have been excluded upon this ground

also. the effect of the holding of this court in 14 The plaintiff offered in rebuttal a letPlanters' Chemical & Oil Co. v. Stearnes, 189 ter or a portion thereof, purporting to have Ala. 503, 66 So..699. For this testimony to been written by the defendant on February be admissible, however, it must very clear. 18, 1921, upon the defendant's stationery ly appear that the fertilizer purchased was which contained his name "S. J Walls, dealthat constituting this particular shipment. er in general merchandise, Columbus City,

[3] The court, over the plaintiff's objec- Ala.," in which letter the defendant stated, tion, permitted the witness Winkles to testi- evidently in answer to plaintiff's demand fy that he got some fertilizer from the de- for settlement of his account, that he could fendant that was not tagged. This witness not “do anything just now," as collections did not know that this was the fertilizer that were poor. The defendant admitted writing came from the plaintiff, nor did he know the the letter. It appears, however, that the letname of the fertilizer, or from where it ter was not complete—some of it being torn came, or how long it had been at the landing off—and it was not signed. The defendant before it was carried to his house, nor was objected to the introduction of this letter beit otherwise identified. We are of the opin- cause of these facts, and to the action of the ion this was prejudicial error.

court in sustaining these objections the [4, 5] The defendant was in the general

plaintiff duly excepted. This letter was merchandise business, and had purchased this fertilizer, not for his personal use, but izer by defendant and its resale by him, and

written long after the purchase of the fertilfor resale, and had immediately sold the its contents could be interpreted as an adsame; for a large portion of which he had mission of indebtedness; and we are of the collected the purchase price. For the purpose of establishing plea A, we assume the opinion that the mere fact that a portion of defendant offered the testimony of some of the letter was gone, and was not signed, did those who had purchased the fertilizer from not render it inadmissible as the defendant

While these him, to the effect that they made a bad crop matters might have affected its probative

admitted having written it. that year. This evidence was offered, evidently, upon the theory as set forth in Bell force, it did not render that portion of the

letter inadmissible, and the court committed v. Reynolds & Lea, 78 Ala. 511, 56 Am. Rep. 52: International Agri. Chem. Co. v. Aber error in sustaining the objection thereto. crombie, 184 Ala. 244, 63 So. 549, 49 L. R. A. counsel for appellant that the plaintiff was

[8] There is much argument in brief of (N. S.) 415; and Abercrombie v. V-C. Chem. Co., 206 Alá. 615, 91 So. 311 ; but, very clear- entitled to the affirmative charge as to the ly, even under these authorities, the evidence, plea A, but we find no requested instruction as brought out by the defendant, was inad- to this effect, and therefore that question is

not presented. missible, and the objection thereto should have been sustained, for nothing appeared suffice for another trial. Let the judgment

What we have here said, we think, will as to the character of the soil, climatic or be reversed, and the cause remanded. seasonal conditions, or presence or absence

Reversed and remanded. of destructive insects, or the character of cultivation. Without any proof of this character, the witness Hilton was permitted to ANDERSON, C. J., and SAYRE and MILtestify that he had made a bad crop that LER, JJ., concur.

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on

(102 So.)

feasors is several, and neither can defend for DEMOPOLIS TELEPHONE CO. V. HOOD. failure of duty on the part of the other, and a (2 Div. 834.)

defendant, whose negligence was the sole or

concurring proximate cause of the injury, is (Supreme Court of Alabama. Oct. 23, 1924. liable for full compensatory damages. Rehearing Denied Nov. 27, 1924.)

8. Master and servant en 401 Third party 1. Negligence em lll(1) General averment claiming benefits of workmen's compensation sufficient where conditions creating duty are law must bring himself within act. shown.

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 en 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. In action against telephone company for 9. Telegraphs and telephones em 20 (1)-Right injuries to railroad employee standing of action against railroad under federal act freight car from contact with wire strung too no defense to employee's action against telelow for clearance, plaintiff was not required to phone company. allege that car was not of unusual height, since In action against telephone company for defendant's failure, in exercise of reasonable injuries to railroad employee by wires strung care, to have foreseen danger because of un

across track without sufficient clearance, right usual height of car was a matter of defense. of action on part of employee against railroad 3. Telegraphs and telephones Omro 15(3)-Duty Comp. St. $S 8657-8665) was no defense.

under Federal Employers' Liability Act (U. S. of providing clearance in stringing wires across railroad track stated.

10. Witnesses 369–Testimony that witness Telephone company, in stringing wires was ordered by employer to attend trial held across railroad track, should provide ample to disclose interest as affecting credibility. clearance, so that wire will not injure tall man In action against telephone company for standing on high car in common use, its duty injuries to employee of railroad from contact not being limited to man of average height rid- with wires strung across track without suffiing on car of usual size.

cient clearance, testimony of another employee 4. Telegraphs and telephones w20(5)-Res road was to pay his way to court, and that he

of railroad as witness for plaintiff that railipsa loquitur doctrine applicable to injuries by wire strung across railroad track.

was ordered there, held to sufficiently disclose

interest of witness as affecting his credibility. In action for injuries to railroad employee injured while standing on freight car from con 11. Telegraphs and telephones Om 20(5)-Evitact with wire strung across track without suffi dence as to employer's aid in procuring evi. cient clearance, it will be presumed that tele dence, and as to olaim against employer, inad. phone company was negligent; doctrine of res missible in employee's action against teleipsa loquitur being applicable.

phone company. 5. Telegraphs and telephones Om 15(3)-Rail

In action against telephone company for inroad's failure to provide employee with safe juries to employee of railroad from contact place no defense in employee's action for nego cient clearance, evidence as to activity of rail

with wires strung across track without suffiligence in stringing telephone wires.

road or its employees in aiding to procure In action against telephone company for injuries to railroad employee from contact with filing, by such employee, of claim against the

X-ray photograph showing injuries, and as to wire strung across track without sufficient clearance, railroad's failure to provide employee

railroad, held properly excluded. with safe place to work was no defense.

12. Evidence Om 380-X-ray photograph held

suffi tly identified. 6. Telegraphs and telephones Om 15(3)–Faila

In action for injuries, X-ray photograph ure of employee of railroad to notify tele

held sufficiently identified as the photograph phone company of overhead wires held no defense in action for injuries to other em

taken of plaintiff's injuries. ployee.

13. Evidence Ow359(4) - X-ray photograph In action against telephone company for

taken by expert, explained by expert testiinjuries to railroad's employee from contact mony given by deposition, held admissible. with wires strung across track without suffi In action for injuries, X-ray photograph, cient clearance, failure of other employee of shown to have been taken by expert, and exrailroad to notify telephone company of defect plained by expert testimony given by deposition, in construction of overhead wires, pursuant to held admissible. working arrangement between company and such other employee, was no defense.

14. Trial 233(3)-Charge referring to “first

count," and to "one or more of the defend. 7. Negligence C 15 — Liability of joint tort ant's pleas of contributory negligence," held feasors is several.

not objectionable. The liability for injuries resulting from Charge reviewing in detail the averments concurring negligence of two or more tort-1 of the complaint, properly placing burden of

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

proof, and stating correctly the facts to be [1] This complaint sets forth the condifound to warrant recovery, and stating that tions from which the duty of care toward plaintiff could recover if jury was reasonably plaintiff arose. Such duty being shown, a satisfied of truth of facts alleged in "first general averment of negligence is sufficient. count of the complaint,” unless defendant bad Postal Telegraph Cable Co. v. Jones, 133 established "one or more of the defendant's pleas of contributory negligence,held not ob- Ala. 217, 32 So. 500; Western Union Tele jectionable.

graph Co. v. Jones, 190 Ala. 70, 66 So. 691.

[2, 3] There was no need to aver that the 15. Negligence Om 140_Charge precluding re- plaintiff or the car on which he was standing

covery, if injuries resulted from accident, was not of unusual height. In placing wires held properly refused.

across a railroad track, known to be used as Charge, that plaintiff could not recover if it was used, the duty, to provide ample clearjury find from evidence that plaintiff sustained injuries as result of accident, held properly re- height while riding on a car of usual size.

ance is not limited to the man of average fused.

The duty is to the tall man as well as the 16. Telegraphs and telephones em 20(7)-Neg. low, and whether riding on a high or low ligence in stringing wires without sufficient

car in common use. clearance held for jury.

[4] If the men and the car on which he In action against telephone company for

was riding reached such unusual or unpreco injuries to employee of railroad from contact with wires strung across track without suffi- edented height that in the exercise of reacient clearance, question of telephone compa- sonable care the danger could not have been ny's negligence held for jury.

foreseen, such matter was defensive. The

duty is measured by the danger of the situaAppeal from Circuit Court, Marengo Coun- tion. A wire across a railroad track is ty; John McKinley, Judge.

manifestly dangerous if hung so low as to

catch a man, passing under it with the speed Action .for damages for personal injury by of a train, whether on the main line or a spur Wiley S. Hood against the Demopolis Tele- track. One element of the danger is that a hone Company. From a judgment for plain- wire does not readily attract attention. Amtiff, defendant appeals. Affirmed.

ple clearance may be easily provided without Exception was taken by defendant to this substantial cost. There is, in such case, the portion of the court's oral charge:

duty to ascertain what is a suficient clear

ance. A failure so to do, and the placing of "But if you are reasonably satisfied from a wire in such position that a man rightthe evidence in this case of the truth of the fully there comes in contact with it, raises a facts alleged in the first count of the complaint, that would make out a prima facie case which presumption of negligence. The doctrine of would entitle the plaintiff to recover in this res ipsa loquitur applies. Ala. City G. & A. case, unless the defendant has established to Ry. Co. v. Appleton, 171 Ala. 324, 54 So. the reasonable satisfaction of the jury, by the 638, Ann. Cas. 1913A, 1181. The complaint evidence in this case, one or more of the de- disclosed that at the time of his injury fendant's pleas of contributory negligence."

plaintiff was an employee of Southern Rail. B. F. Smith, of Birmingham, and Huey & way Company, and in the discharge of his Welch, of Bessemer, for appellant.

duties for that company in the use of the

track. These facts did not make it necesPettus, Fuller & Lapsley, of Selma, and I. I. Canterbury, of Linden, for appellee. sary for the plaintiff to aver or prove that

the Southern Railway Company had a right BOULDIN, J. The action is to recover of way prior and superior to that of the dedamages for personal injuries. The com

fendant. plaint shows that defendant's telephone wire

The construction and operation of a rail. was strung across and over a railroad track, road and telephone line may rightfully be and that plaintiff, in course of his employ- had over the same ground, so long as the one ment, had occasion to pass under the wire, does not infringe upon the right of the other. and, in so passing, while standing erect up- The duty to plaintiff did not grow out of his on the top of a freight car, he came in con- relation to Southern Railway Company. tact with the wire, and was injured. That relation was merely the occasion which

It is averred that the wire was so low brought plaintiff within the class of persons as not to clear a man of plaintiff's height, rightfully passing under the overhead wire. standing erect on the top of a car of the size The duty to provide against danger was a on which he was riding.

duty to plaintiff personally,' and not to his After setting out these conditions, it is employer, so far as this action goes. The charged in general terms that the defendant case is not different in principle from that of negligently constructed said wire too low, stringing a wire over or

a public or negligently allowed the same to become highway. In the latter case the duty to protoo low, which negligence proximately caused vide against danger is due to any person in plaintiff's injuries.

the use of the highway, while in the case at

across

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

(102 So.) bar the duty is to any person of the class , read by the witnesses qualified by experience rightfully using the right of way as it was and training to do so; and that it disclosed used.

a fracture of the second lumbar vertebra. [5, 6] It follows that no failure of duty on [12, 13] Objection is made to the photograph the part of Southern Railway Company to as evidence upon two grounds. (1) It is not provide a safe place of work for its em- sufficiently identified as the photograph so ployees would acquit the defendant of its taken, and testified about by the witnesses. duty in the premises. If there was a work- (2) That the reading of an X-ray photograph ing arrangement between this defendant and is the work of an expert; that a jury canany employee of the railroad company, other not read it; and that it should be admitted than this plaintiff, by which the defendant only along with the testimony of a comwas to be notified of any defect in the con- petent reader of such photographs, pointing struction of its overhead wires, such ar- out to the jury the features showing the inrangement would merely constitute such em- jury in question. ployee the defendant's agent in that regard, The X-ray photographer testified to an and any negligent failure to give notice or identifying number placed by him thereon, remedy the defect would be a failure of duty with the date. The photograph is made on the part of defendant.

part of the record. An examination dis[7,8] The liability for injuries resulting closes the number "490,” and “6-4-23," standfrom concurring negligence of two or more ing for June 4, 1923. These marks, in contort-feasors is several. Neither can defend nection with the testimony, are sufficient on for the failure of duty on the part of the the question of identification. other. The sole question is: Was the negli The evidence afforded by the advance of gent failure of duty on the part of the de- science, in making discovery of the hitherto fendant the sole or concurring proximate unseen and unknown, is generally admitted cause of the injury? If so, the defendant be- in American jurisprudence. The reason is comes liable for full compensatory damages. obvious. Accordingly, X-ray photographs The trial court very properly, in such case, showing the bony structure of the human refuses any testimony tending to divert the body, when proven to be taken by a compeattention of the jury to some wrongful act tent person, and properly identified, are ador negligence of a party not sued. Our mitted in evidence for the purpose of showWorkmen’s Compensation Law, Acts 1919, p. ing injuries or the presence of foreign ob206, section 32, makes provision in certain jects. Jenkins v. School, 90 W. Va. 230, 110 cases for a third party to have its benefits. S. E. 560, 22 A. L. R. 323; Covington v.

[9] Like all claims under part 2 of that Bowen, 191 Ky. 376, 230 S. W. 532; Presact, the claimant must become the actor and cott & N. Western Ry Co. v. Franks, 111 make a showing of his right to its benefits. Ark. 83, 163 S. W. 180, Ann. Cas. 1916A, 773, It was not necessary for plaintiff to negative and note p. 776. the terms of section 32 of the Compensation Members of this court, with the aid of Act. Neither would a right of action against such background of light, and probably with the Southern Railway Company under the about the same skill available to the jury, Federal Employers' Liability Act (Comp. St. have examined the photograph in question. $$ 8657-8665) constitute any defense to this It reveals clearly enough the bony structure action,

of the trunk, including the bones of the [10, 11] The evidence, without dispute, pelvis, the ribs, and the backbone; shows the shows that plaintiff was, at the time of his outline of the several vertebræ with their injury, an employee of the Southern Rail-processes. We cannot, without aid, discover way Company, and that certain of plaintiff's with any assurance the particular appear. witnesses were such employees. The wit- ances indicating the fracture testified to by ness Jones testified that he supposed that the expert witnesses. We are persuaded company was to pay his way to court, and such photographs may be much more valuthat he was ordered there. This sufficiently able evidence when explained to the jury disclosed any interest of the witness as af- from the stand by a person skilled in reading fecting his credibility. The further efforts them, giving the angle at which they were to show voluntary activity of the railroad produced, and the special appearance of the company or its employees in aiding to pro- part involved indicating injury vel non. We cure the X-ray photograph, or that plaintiff think, however, this photograph admissible had filed a claim against that company, tend- in connection with the expert testimony gived to divert the issue to one of liability of en by deposition. At least, it shows there that company for the injury. There was no was a photograph, giving, with all the acerror in refusing this testimony.

curacy of nature's . laws, the outlines menAn X-ray photograph was admitted in tioned. This fact is a circumstance from evidence for plaintiff. The evidence as to the which an inference may be drawn favorable taking of the photograph and what its read to the opinion given by those entirely familing disclosed was by deposition. This tes- iar with the details of the human anatomy, timony tended to show the photograph was and skilled in detecting injuries thereto by taken by a qualified expert; that it was making and reading such photographs. Any

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