
    (84 South. 780)
    HINES, Director General of Railroads, v. LAURENDINE.
    (1 Div. 359.)
    (Court of Appeals of Alabama.
    Jan. 13, 1920.
    Rehearing Denied Feb. 10, 1920.)
    1. Action <&wkey;48(2) — Counts for Injuries to Truck Properly Joined witi-i Count for Breach op Agreement to Repair.
    Where a railroad’s injuries to an auto truck stalled on its track gave rise to an alleged promise to repair, the whole growing out of one transaction, and relating to the same subject-matter, the damage to the auto truck, under Code 1907, § 5329, the owner could join his counts for the injuries with a count for breach of the agreement to repair.
    2. Negligence &wkey;108(l) — Count in Simple Negligence Embraces Initiative and Subsequent Negligence.
    A count in simple negligence embraces initiative and subsequent negligence.
    3. Railroads &wkey;344(l) — Count in Simple Negligence held not Changed to One in Subsequent Negligence.
    Allegation in count of auto truck owner against railroad for damages thereto, that the truck became stalled on the track, held not to change the count, which was in simple negligence, to one in subsequent negligence, thereby requiring further allegation that the railroad’s servants knew of the truck’s perilous position.
    4. Railroads <&wkey;344(8) — Negativing Contributory Negligence Unnecessary.
    A count in simple negligence against a railroad for injuries to an auto truck stalled on the track need not allege that the auto was not stopped on the track as a result of negligence of the driver, which is matter of. defense.
    5. Appeal and Error <&wkey;1040(ll) — Error in Overruling Demurrers to- Count Harmless.
    In action against railroad for damage to auto truck stalled on track, any error in overruling defendant’s demurrers to count of complaint setting up breach of defendant’s agreement to repair truck was harmless to defendant, where in court’s oral charge and in written charge given at defendant’s request it was stated no recovery could be had unless jury was satisfied defendant promised to repair.
    6. Appeal and Error <&wkey;1040(ll) — Error in Sustaining Demurrer to Pleading Harmless, where Pacts Still Provable.
    In action against railroad for damages to auto truck stalled on track, any error in sustaining plaintiff’s demurrers to defendant’s special plea of contributory negligence held harmless to defendant, where under another special plea all facts alleged in that to which demurrer was sustained were provable.
    7. Negligence <&wkey;117 — Plea oe Contributory Negligence oe Auto Truck Driver Crossing Railroad Held Bad.
    A plea of contributory negligence on the part of the driver of an auto truck stalled on a railroad track, which fails to allege facts constituting contributory negligence is not cured by allegation that driver “negligently” failed to stop and “negligently” failed to permit the truck to cross the track.
    8. Appeal and Error <&wkey;237(2) — Objection to Question does not Place Court in Error, without Motion to Exclude Answer.
    Objection to question to a witness will not place trial court in error in admitting his answer, where no motion is made to exclude it.
    9. Evidence <&wkey;472(9) — Engineer oe road, Sued for Damage to Truck at Crossing, could not 'Testify Whether Speed was Sufficient to take it over.
    In action against railroad for damages to auto truck stalled on track, it was competent for road’s engineer to testify as to rate ■ of speed at which train and truck were traveling, their distance from crossing, and as to whether they were traveling fast or slow, but not to determine whether or not speed at which the truck was traveling was sufficient to take it over crossing before train, a question for jury.
    10. Evidence &wkey;>158(28) — Written Estimate for Repair of Motor Truck Best Evidence.
    In action against railroad for damages to auto truck stalled on track, question to witness as to original estimate for repair made on damaged truck was objectionable on ground paper itself was best evidence of contents.
    11. Evidence <&wkey;20(2), 44 — Court Takes Judicial Notice of Federal Control of Railroads and Identity of Director General.
    The court takes judicial notice that railroads were taken over by the federal government under public proclamation issued by the President, and that they were being operated by the Director General of Railroads at the time of an accident, and that a'particular individual was Director General.
    12. Appeal and Error t§^928(4) — Presumption Charges were Refused, Because Requested too Late.
    Where it does not appear from the bill of exceptions that request to give charges was made before the jury retired, it will be presumed, in favor of ruling of trial court, charges otherwise good were refused for such reasons.
    <§==>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
    Action by Peter B. Laurendine against Walker D. Hines, as Director General of Railroads, for damages for injuries to an automobile track. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    The pleadings for the plaintiff sufficiently appear from the opinion of the court, as do assignments of error 1, 2, 4, 5, 8, and 9. The demurrers to the first count, made the basis of assignments 3, 6, and 10 are as follows:
    
      Ho facts are stated showing a duty arising on the part of defendant relative to plaintiff’s automobile; it is not shown by what means plaintiff’s automobile became -stalled on the track of the railroad; it is not shown that the stalling of the automobile was not plaintiff’s fanlt; because it is not alleged whether -the negligence complained of was initial or subsequent in nature.
    The first plea sets up contributory negligence, in that plaintiff’s agent, acting in the line and scope of his authority, while driving said automobile, immediately before and at the time of the occurrence coinplained of, attempted to cross the track in front of a moving engine without first stopping, looking, and listening.
    The third plea sets up the same fact, and alleges that said agent negligently drove said automobile upon the track, and stopped said automobile upon said track in front of the approaching train, which struck it. The fifth plea is the same as the third, except that it adds the following;
    “After becoming conscious of the immediate approach of the train and until struck by said train.”
    The sixth plea sets up that said agent negligently failed to stop said automobile before reaching the said railroad track, and negligently failed to permit said automobile to cross said track, which defendant avers could have been done by permitting it to continue at the same rate of speed with which it approached said track, and which would have permitted it to clear said track before being struck by the approaching train, but in some way stopped said automobile immediately in front 'of the approaching train, and so closely thereto as that it was impossible for the operatives of the train to stop the same after seeing the automobile stop upon the track before striking it.
    The other facts sufficiently appear. •
    Rich & Hamilton, of Mobile, for appellant.
    There was a misjoinder. 1 S. W. 498. This may be raised by motion to strike or demurrer. 186 Ala. 443, 65 South. 78; 13 Ala. App. 47, 69 South. 302; 114 Ala. 128, 21 South. 992. The court improperly overruled the demurrers. 170 Ala. 409, 54 South. 203; 15 Ala. App. 507, 74 South. 156; 1S1 Ala. 491, 61 South. 361; 171 Ala. 251, 55 South. 170; 200 Ala. 238, 75 South. 996; 199 Ala. 654, 75 South. 15; 199 Ala. 571, 75 South. 159. The court improperly sustained demurrers to plea 3. 151 Ala. 335, 43 South. 844; 125 Ala. 191, 27 South. 770; 33 Oyc. 986. On these authorities the court erred in sustaining demurrers to the other pleas. The counsel discuss assignments of error relative to evidence, but without further citation of authority. The court erred in declining to give the affirmative charge<( for the defendant. 222 U. S. 506, 32 Sup." Ct. 114, 56 Ii. Ed. 288; 172 Ala. 597, 55 South. 812; 196 Ala. 133, 72 South. 67; 197 Ala. 151, 72 South. 328; 81 South. 15.
    Harry T. Smith & Caffey, of Mobile, for appellee.
    There was no misjoinder. 190 Ala. 36, 66 South. 655; 14 Ala. App. 187, 68 South. 801; 14 Ala. App. 287, 69 South. 993; 14 Ala. App. 380, 70 South. 986; 186 Ala. 443, 65 South. 78; section 5329, Code 1907. There was no tenable objection to count 1. 172 Ala. 600, 55 South. 812. Counts 6 and 4 were practically eliminated. Counsel discuss action of court on the pleading, but without further citation of authority. The defendant was not entitled to the affirmative charge. 15 Ala. App. 571, 74 South. 396; (D. C.) 247 Fed. 888; 246 Fed. 786,-159 C. C. A. 88, h. R. A, 1918C, 795; (D. C.) 249 Fed. 609; 233 Mass. 162, 123 H. E. 621.
   MERRITT, J.

The complaint as originally filed contained four counts. The first claimed damages for the negligent operation by defendant of one of its trains, in that it was caused to collide with plaintiff’s truck automobile, which had stalled on defendant’s track. The third count was for damages for conversion by plaintiff of defendant’s truck automobile. The fourth count claimed damages for the breach of an agreement entered into by the defendant, whereby it promised to put in repair the automobile truck which had been injured by the collision. The second count was in trespass, and was withdrawn by the plaintiff. Counts 5 and 6 were after-wards added; count 5 charging subsequent negligence, and count 6 charging wanton and willful negligence. The general charge was for defendant as to count 6.

Assignments of error 1, 2, 4, 5, 8, and 9 are based on the proposition that counts 2 and 4 were improperly joined. Code 1907, § 5329, provides that “all actions ex delicto” may be joined with actions “ex contractu” arising out of the same transaction or relating to the same subject-matter. A reading of these two counts shows that the alleged injury to the truck gave rise to the alleged promise to make the repair, that the facts in one instance gave rise to the fahts in the other instance, and all growing out of one and the same transaction, and relating to the same subject-matter, the damage incident to the injury of plaintiff’s auto truck. These assignments of error are not well taken. Union Marine Insurance Co. v. Charlie’s Transfer Co., 186 Ala. 443, 65 South. 78; Gambill v. Fox Typewriter Co., 190 Ala. 36, 66 South. 655.

As we construe count 1, it is a count in simple negligence, and as such embraces initiative and subsequent negligence. L. & H. R. R. Co. v. Calvert, 172 Ala. 600, 55 South. 812. The allegation in the count that plaintiff’s auto “became stalled on tlie track” in no wise changed this to a count in subsequent negligence, thereby requiring the further allegation that defendant’s servant, etc., knew of the ijerilous position of the plaintiff. Being a count in simple negligence, it was not necessary to allege therein that the auto was not stopped on tlie track as a result of the negligence’of the driver thereof. This was a matter of defense, and the fact that it was “stalled” there rather tends to refute the idea that it was negligently there. The overruling of the demurrers to this count, which constitute the third, sixth, and tenth assignments of error was without error.

If there was error in overruling defendant’s demurrers to the fourth count as amended, which we do not decide, then same was not hurtful to the defendant, for the reason that in the court’s oral charge, and in written charge 9 given at the defendant’s request, it is specifically stated that no recovery could be 'had unless the jury was reasonably satisfied from all the evidence that the defendant promised or agreed to repair the truck, and that plaintiff promised or agreed to accept such repair in full settlement of all claims that it might have ha'd against the defendant.

If sustaining the plaintiff’s demurrers to defendant’s third special plea of contributory negligence was error, it was without injury to the defendant, for under defendant’s first special plea, alleging a failure of the driver to stop, look, and listen before going on the track, all of the'facts alleged in said third plea were provable. These facts were also available under defendant’s second special plea, and this may also be said as to defendant’s fourth plea.

The count of the complaint to which defendant’s fifth and sixth pleas of contributory negligence were directed shows that plaintiff’s truck was stalled on defendant’s track, and these pleas fail to allege such facts as would show that plaintiff was guilty of contributory negligence, and a careful examination of the facts set out in the sixth special plea shows that they were provable under the general issue, and the vice of the sixth plea as one of contributory negligence was not cured by the allegation that the driver “negligently” failed to stop and “negligently” failed to permit the truck to cross the track.

While timely objection was made by the defendant to the question propounded to the witness Dahlgreen, no motion was made to exclude his answer, and the objection to the question will not place the trial court in error, where no motion was made to exclude the answer; and for this reason assignments of error 19% and 20 are not well taken.

It was competent for tlie engineer to testify as to the rate of speed at which the train and truck were traveling, the distance of the .train and the truck from the crossing, and even as to whether they were traveling fast or slow, but not for him to do this, which was strictly within the province of tlie jury — determine whether or not, at the rate of speed the truck was traveling, it could have passed the crossing before the train reached there. This was for the jury to say.

The question propounded to the witness Martin as to the original estimate made on the damaged truck ivas objectionablé, for the reason that the paper was the best evidence as to its contents.

Appellant’s insistence that the general affirmative charge should have been given is based on the assumption that there was no proof that the defendant, Walker D. Hines, Director General of Railroads, had any connection with the occurrence complained of, and that the court could not take judicial notice of the fact that the Gulf, Mobile & Northern Railroad had been taken over and was being operated by the Director General of Railroads. The court takes judicial notice that by public proclamation the railroads were taken over .by the government under public proclamation is.sued by the Chief Executive, and that they are being operated, and were being operated, by the Director General of Railroads at the time of the alleged accident, and that said Walker D. Hines was Director General of Railroads. Muir v. L. & N. R. R. (D. C.) 247 Red. 888; Ex parte McMillan, 15 Ala. App. 571, 74 South. 396. The question of negligence was properly submitted to the jury, and the refusal of charges withdrawing from the jury this question were properly refused.

The refusal of the court to give several charges requested hy appellant in writing is> assigned as error; but it does not appear from-the bill of exceptions that the request was made before the jury retired to make up their Verdict, and it will therefore be presumed, in favor of the ruling of the trial court, that the charges, if otherwise good, were refused for this reason. Patterson v. State, 8 Ala. App. 420, 62 South. 1026; Empire Coal Co. v. Crevlee, 9 Ala. App. 657, 64 South. 207; Carter v. T. C. & I. Co., 180 Ala. 369, 61 South. 65.

We find no reversible error in the trial of the cause, and it follows that the same must be affirmed.

Affirmed.  