
    Alabama Great Southern R. R. Co. v. Clarke.
    
      Action for Damages for Destroying 115 Bales of Gotton by Fire from Sparks of Engine.
    
    [Decided Jan. 3. 1906,
    39 So. Rep. 817.]
    1. Railroads; Fires; Oontrilmtory Negligence; Vicarious Negligence. — In an action against a Railroad Company for destroying cotton by fire, plaintiff is not chargeable with the contributory negligence of a warehouse company, with whom he had stored his cotton, in leaving other cotton exposed upon an uncovered platform, which caught fire from the sparks from defendant’s engine, and, in turn, communicated the fire to plaintiff’s cotton, destroying it.
    2. Appeal; Assignment of Error; Complaint of Distinct Ruling.— Where error is assigned to the sustaining of several grounds of demurrer to several pleas as one assignment, if any ground of demurrer was properly sustained, the assignment is not sustained. :
    3. Damages; Assessment; Question for Jury. — If the market price of the cotton is shown, but the grade is not shown, the law does not presume it to be of the lowest grade, but that is a question of fact to be determined by the jury, from all the circumstances in the case.
    4. Railroads; Eires; Evidence. — In an action against a railroad for ' destroying cotton by fire caused by negligently emitting sparks from its engine, evidence of what was being done with the engine at or near the place, at or near the time the fire was discovered, was competent as tending to show whether the fire was caused by the sparks from the engine or not.
    
      Same; Same; Question for Jury. — Whether the engine was operated in point of time and position, near enough to have caused the fire, and whether in the proper direction with reference to the direction of the wind, were questions for the jury to determine.
    6. Same; Evidence. — It is proper to ask a witness, on cross examination, in an action for negligently setting fire to and destroying cotton, caused by sparks from the engine, if defendant’s servants in charge of the train - were not hurrying the movements of the engine.
    
      7. Same; Instructions.- — A charge which instructs the jury that the uncontroverted evidence showed that the engine was in good condition and equipped with proper appliances, was properly refused as invasive .of the province of the jury, especially where the appliance referred to was offered in evidence and was inspected by the jury.
    
      8. Same; Same. — Charges ignoring the condition of the engine as to its appliances for preventing fires, are properly refused in an action for destroying property by fire caused from negligently emitting sparks from an engine.
    o: Witness; Impeachment; Contradictory Statements. — A paper writing containing a series of questions asked and answers made thereto by a witness, before trial, taken down in shorthand and read over to witness, but not signed by him, relating to the subject matter of the suit, when identified by the witness and others, is proper to be introduced in evidence for the purpose of showing contradictory statements made by witness, the proper predicate having been laid.
    
      Appeal from Greene Circuit Court.
    Heard before Hon S. H. Sprott.
    This was an action begun by appellee against appellant to recover the value of 115 bales of cotton, alleged to have been burned by lire originating from sparks thrown out by appellant’s engine. The cotton was stored in a third person’s Avarehouse, and the appellant attempted to set up as a defense to the action that the person storing the cotton Avas guilty of contributory negligence in leaAdng the cotton out from under the Avarehouse shed and uncovered. Demurrers Avere interposed to these pleas and sustained, and issue was joined on the plea of general issue.
    Statement A, referred to in the opinion, Avas a series of questions and ansAvers Avhich Avere propounded to Henry Pippin by Mr. Smith and ansAvered by said Pippin. It AAras shoAA’n by the testimony of Pippin and Smith that this conversation took place betAveen them previous to the trial, was taken doAvn in shorthand and read OArer to Henry Pippin, but not signed by him. The same related to the conditions surrounding the depot and Avarehouse, the operation of trains, and his knoAvledge of Avliat occurred just previous to the fire and during the continuance of the fire. Plaintiff’s counsel on cross-examination asked Avitness Hinds this question concerning the moArement of the cars and engines in the yards: “You Avere hurrying the work up, Avere you not?” Defendant objected to this question. The court overruled the objection, and Avitness an'swered: “We Avere doing the switching in the usual Avay. We hurried every day. We do it as quickly as Ave can in order to make the time.” The defendant moAred to exclude this testimony, and the court overruled the motion. Plaintiff’s counsel asked Avitness Gray on direct examination: “What was the first thing that you observed that the engine did there?” Witness ansAvered : “It Avas on the main line, and Avas pulling a car right Avhere the seed house Avas. This car Avas about half AA'ay of the seed house, and the engine Avas pushing it north up the track.” There Avas objection to the question and ansAver Avhich Avas overruled.
    
      The following charges, requested by defendant, 'were refused: “(4) The court charges the jury that the evidence is uncontroverted that the engine which it is alleged caused this fire was in good condition at the time of the injury complained of * í:" i:' (23) If the jury should believe from the evidence that the damage complained of in the complainant’s complaint was caused by sparks from the defendant’s engine run and operated on its road, the plaintiff is not entitled to recover if the jury should further believe from the evidence that the defendant’s engine was carefully operated by a competent person near and around the warehouse on the day of the fire. (24) The court charges the jury that, unless they believe from the evidence that defendant’s engine Avas improperly handled at' the time of the fire, they must find for the defendant.”
    A. G-. & E. D. Smith and L. P. Pounders, for appellant.
    The court should have overruled the demurrers to defendant pleas Nos. 2 to 8 inclusive. — So. Ry. Go. v. Wilson, 35 So. Rep. 561; L. & N. R. R. Co. v. Sullivan Timber Co., 35 So. Rep. 327; L. & N. R. R. Co. v. Miller, 109 Ala. 500; Rost v. Buffalo, P. é W. R. R. Co., 108 Pa. St. 585; Mo. Pac. Ry. Co. v. Bartlett, 69 Tex. 79; 32 A. & E. R. R. Cas. 343; R. R. Co. v. Simons, 54 111. 504; Murphy v. R. R. Co., 45 Wis. 222; Kellog v. R. R. Co., 26 Wis. 223; Erd v. Ry. Co., 41 Wis. 65; Kesec v. Ry. Co., 30 IOAva 78; R. R. Co. v. Shanefelt, 47 111. 497; Coates, et al. v. Ry. Go., 61 Mo. 38; Connely v. Erie R. Co., 68 App. Div. 542; American, Strawboard Co. v. C. & A. R. Co., 75 111. App. 420; A. & V. R. R. Co. v. Sol. Fried Co., 33 So. 74 (A5) ; R. R. Co. v. Frasier, 47 111. 505; R. R. Co. v. Munn, 51 111. App. 78; I. C. R. R. Co. v. Sims, 27 So. Rep. 527; Smith v. Smith, 2 Pickering, 621; Forks Township v. King, 84 Pa. St. 230; Winner v. Oakland Toumship, 158 Pa. St. 405; 27 Atlantic Iiep'. 1111; Wetley v. Ind. d C. R. R. Co., 105 Ind. 55; Hawkins v. Pithiun, 2 B. Monroe Rep. (Ky.) 515; Arctic Fire Ins. Co. v. Austin, 25 Am. Rep. 221; Transfer Co. v. Kelly, 36 Ohio St. Rep. 92; Vanderplank v. Miller, 1 Moody & Malkin, (Eng.) 169; Simpson v. Hand, 6 Wharton, 311; Dug-gins v. Watson, 15 Ark. 118.
    
      The court should not have permitted the witness Charlie Gray, to testify over the objection and exception of defendant as to the poling of a car near the seed house. —-A. C. 8. B. B. Co. f. lhiwk, 72 Ala. 112; L. & A. R. R. Co. v. Pearson, 97 Ala. 211; R. R. Co. v. Hammond, 93' Ala. 181; Tanner v.'R. R. Go., 60 Ala. 621; R. R. Go. v. Ashcraft, 48 Ala. 15.
    The defendant should have been allowed to introduce the written statement of witness Henry Pippen. — 3 Mayfield’s Digest, pp. 485-6.
    The court should not have permitted the witness Hines OArer the objection and exception of defendant to testify as to Avhether or not he was hurrying the work of defendant at the time of the fire. — L. & N. R. R. Co. v. Marbury Lttmber Co., 132 Ala. 526; Perdue v. L. & N. R. R. Co., 100 Ala. 539; R. R. v. Clark, 136 Ala. 462.
    The court should have given each of the Avritten charges numbered 4, 23 and 24 requested by defendant. • — L. <£ A. R. R. Co. v. Marbury Lumber Co., 132 Ala. 525; R. R. Co. v. Clark, 136 Ala. 462; L. & A. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237.
    Harayood & McKinley, Vandergraff & Sprott,' for appellee.
    The court did not err in sustaining the demurrer to the defendant’s pleas Nos. 2 to 8 inclusive, because :
    (a) Said pleas seek to impute to the plaintiff the alleged negligence of the vutrehouse company, without showing that the relation of master and servant existed between plaintiff and the warehouse company, and that plaintiff had the right and poAver to control and direct the Avareliouse company in the conduct and management of its Avarehouse business. — Moore v. Sanborne, 2 Mich. 519; S. C. 59 Am. Dec. 209; Hilliard v. Richardson, 3 Gray 349; S. C. 63 Am. Dec. 743; DeForrest v. Wright, 2 Mich. 368; Ely ton Land Go. v. Mingea, 89 Ala. 521; Go. Pac. R. R. Go. v. Hughes, 87 Ala. 610; Otis v. Thom, 23 Ala. 469; Little r. Hackett, 116 U. S. 366; Stone -v. Cheshire Ruilroad, 51 Am. Dec. 200, note; A. J. Elea. R. Co. v. A. Y., L. E. cG \Y. R. Co., 43 L. B. A. 849.
    (b) Said pleas sIioav that none of the cotton belonging to plaintiff, was stored by said Avarehouse company on the unenclosed platform, and in placing its own cot-. ton or cotton belonging to third persons, on said platform, the warehouse company was acting solely for itself and not in any sense within the scope of the agency of 'said warehouse company while employed by the plaintiff, nor in pursuance or performance of its duty towards the plaintiff. — Goodloe v. M. & G. R. R. Go., 107 Ala, 240; McKeneie v. McLeod, 10 Bing. 385; Holt v. Whaley, 51 Ala. 569; Gillam v. R. R. Go., 70 Ala. 268; Collins v. A. G. S. R. R. Go., 16 So. Eep. 142; Lilly v. Fletcher, 81 Ala. 235; 14 Eng. & Am. Ency. Law (1st Ed.) 809.
    (c) Said pleas fail to allege or show that the warehouse company, while acting as agent for plaintiff, received the alleged notice or Avarning that it Avould be dangerous to place cotton on said un-enclosed platform. ■ — Pepper v. George, 51 Ala. 190; Ried v. Band of Mobile, 70 Ala. 199; Lucas v. Bank, 2 SteAAr. 321; 4 May-field’s Dig. 534,- Sec. 248.
    (d) The pleas sIioav that the AArarehouse company Avas conducting a separate and distinct business on its oaaui account, in which the plaintiff had no interest; hence the alleged notice or Avarning given to the warehouse company, would not be notice to the plaintiff.— Frenkel v. Hudson, 82 Ala. 162.
    (e) Said pleas sIioav that the-facte which are alleged to have constituted negligence, that is the placing of cotton on said unenclosed platform, Avas not the proximate cause of the destruction of plaintiff’s cotton — ■ ' but a mere condition. — L. £ W. R. R. Go. v. Marbury Lumber Go., 125 Ala. 237; Southern R. Co. v. Wilson, 35 So. Eep. 561.
    The court did not err in permitting the AAdtness Ward and Dunlap to testify as to the average grade of cotton dealt in in the EutaAV market during the fall of 1900, the time in Avhich the evidence sIioavs that the cotton AA'as bought in said market by the plaintiff. — Greenleaf on EAddence Sec. S3, 84 and 351; Berry u. Fall £ Duxberry, 54 Ala. 446. '
    The court did not err in allowing the Avitness to testify as to the polling of the. car at or near the seed house. —A. G. S. R. R. Go. v. Hawk, 72 Ala. 117.
    
      Tlie court properly refused to alldnv the defendant to introduce the unsigned purported statement of the conversation taken down in short-hand, alleged to have been liad betwen Henry Pippen and E. I). Smith.
    The court committed no error in allowing the witness to be questioned on cross examination by plaintiff, as to whether or not they were hurrying the work on the day of the fire. — Marbury Lumber Company Case, 132 Ala. 520.
    The court committed no error in refusing to give charges Nos. 4, 23 and 24 requested by defendant. — L. tG N. R. R. Co. v. Marbury Lumber Co., 132 Ala. 523; A. (}. P. R. R. Co. v. Clark, 136 Ala. 462; Jacksonville T. A K. R. R. Co. v. P. L. T. & M. Co., 9 So. Eep. 661; 5 Rapalje & Macks Dig. R. R. Law, 918, § 237 and cases cited; 5 Rapalje & Macks Dig. R. R. Law 922, § 247 and cases cited.
   SIMPSON, J.

This was .an action for damages for the burning of 115 bales of cotton of the plaintiff (appellee) in the warehouse of the Planters’ Warehouse & Commission Company, at Eutaw, Ala.; and it is claimed that said burning 'was caused by the negligence of defendant (appellant), from whose engine it is claimed sparks were emitted, setting fire to cotton on the platform adjoining said warehouse, which fire extended to the warehouse, destroying plaintiff’s cotton. Defendant claimed that the warehouse company was guilty of contributory negligence in permitting cotton to remain on the open platform, where it was liable to be set on fire by sparks necessarily escaping from defendant’s engines in the necessary prosecution of its business.

The, first point raised by the argument is whether or not the plaintiff can be held liable for the consequences of the contributory negligence of the warehouse company, to which plaintiff had committed the care of its cotton. The doctrine of contributory negligence is based upon the principle that the plaintiff, having been guilty of negligence which proximately contributed to the injury received or the loss sustained, cannot recover because he himself is in part responsible for it, although the defendant may also have been negligent. Without passing upon this general principle, the court holds that in this case the negligence complained of, being something not immediately connected with the bailment, toivit, placing other cotton on the platform, which had no necessary connection with the act of storing the plaintiffs cotton, the'plaintiff could not be charged with contributory negligence, on that account.

One assignment of error is to the sustaining of all of the 54 causes of demurrer against the pleas numbered from 2 to 8 inclusive, so that, if any one of the causes of demurrer was properly sustained, the assignment is not sustained. We have treated of the matter as argued.

While it is true that the burden ivas ón the plaintiff to prove the quality of his cotton which was burned, yet one of thé elements necessary in ascertaining what •his cotton ivas worth was the prevailing price of cotton in that market; and if the plaintiff failed to produce proof as to the other elements, then it was a matter of argument to go to the jury as to whether they had sufficient data from which to ascertain the liability, and as to whether, in the absence of proof, they should presume that the cotton of plaintiff, was of the average grade or of the lower.grade. — Berry v. Nall & Duxe-berry, 54 Ala. 446.

Referring to the objection made to the question to the witness Gray,, and the answer thereto, about the “polling” of a car by the engine, as the claim of. the plaintiff ivas that the fire was caused by a spark for the engine, it ivas proper to allow: proof as to ivhat the engine ivas doing a little, before', or about the time the fire ivas discovered, at and near the place of the fire, as a circumstance from which, with other evidence, the jury could determine whether or not the .spark from the engine caused the fire. As to whether the operation of the engine ivas near enough, in point of time- and position, and the proper direction ivith reference to the wind, to have caused the fire, were matters for the consideration of the jury.

It is competent to impeach a witness by proving contradictory statements about a material matter made out of court, and it is not necessary that such contradictory statements should be signed, or even to be in writing. A certain paper was read to the witness Pippin, and the witness identified, it as the paper which had been read to him the night before by Mr. Smith, and that “he stated to Mr. Smith that it Avas all correct, except the fire being at the covered platform; that he also stated that this statement Avas not correct Avith reference that part of it ; that he stated, also, that it was not correct in that he said the engine Avas standing before coming from the upper part of the yard.” Mr. Smith also identified the paper as the one A\diich had been read to the Avitness, and testified that the witness said that it Avas all. correct, and “that he did not deny anything in that statement, either by intimation or by direct declaration.” When this case was first before the court, there being a large “A” in the. space referring to the statement “AAdiich is as follows,” this Aims understood as a reference mark to an exhibit which could not be found; but it appears now that the “statement,” Avhich consists of a series of questions and ansAvers, and which the court at first considered only as a continuation of the cross-examination of the Avitness, is in the record, and the court holds that the trial court erred in sustaining the objection to the introduction of such statement, after it had been identified and referred to in the testimony of tAvo Avitnesses.— 1 Wigmore on Evidence, § 754 ; Foster & Rudder v. Smith, 104 Ala. 248, 16 South. 61.

In view of the latitude alloAved in closs-examination, it Avas competent to prove the manner in AAdiich they AA'ere operating the mi gin e. There Avas no reversible error in oAnrruling the, objections to the question to the Avitness H ines.

There AA'as no error in refusing to give charges numbered 4, 23, and 24, requested by defendant.. As to charge 4, AAdiile there Avas no direct proof as to the condition of the engine, except that produced by defendant, yet then1 AA'ere circumstances from AAdiich it Avas proper to leave it to the jury to consider whether the engine Avas properly equipped, and particularly as the spark arrester Avas submitted for their inspection, and it was for them to examine it and determine, in connection with, other evidence, whether it was a proper appliance. Charge 23 ignores entirely the condition of the engine as to appliances for preventing fires, and the same remark applies to charge 24.

The judgment of the court is reversed and the cause remanded.

McClellan, C. J., and Tyson, Dowdell, and Denson, JJ., concur.  