Birmingham Railway Light & Power Co. v. Oden

51 So. 240, 164 Ala. 1, 1909 Ala. LEXIS 246

• Court: Supreme Court of Alabama
• Decided: December 16, 1909
• Status: Published

Opinion

DOWDELL, C. J.

The complaint contained three counts. At the conclusion of the evidence, the third count, based on wantonness, was at the instance and request of the defendant charged out.

The first and second counts counted on simple negligence. In each of ‘these counts the relation of passenger and common carrier was averred which, in law, raised up a duty of safe carriage by the carrier; and in their averments, both in respect to duty and to negligence on the part of the carrier, when measured by the rule repeatedly declared in our decisions as to the pleadings in such a case, were sufficient, and not subject to the demurrer interposed, and which the trial court properly overruled. — Armstrong, Adm’r, v. Montgomery Street Ry. Co., 123 Ala. 244, 26 South. 349; Birmingham Railway, Light & Power Co. v. Bennett, 144 Ala. 372, 39 South. 565; K. C., M. & B. R. R. Co. v. Matthews, 142 Ala. 298, 39 South. 207; Birmingham Railway, Light & Power Co. v. Wise, 149 Ala. 496, 42 South. 821.

The defendant filed interrogatories to the plaintiff under the statute (section 4049, Code 1907). It was compulsory on the plaintiff to answer these interrogatories, except upon grounds of impertinency or of being subjected to criminal prosecution, when she might decline (section 4057). The plaintiff answered the interrogatories, and her depositions, when so taken, were in the control of the defendant, to he offered or not, as evidence on the trial alone by it (section 4053). These statutes have been construed by this court, and it has been determined that a party so taking the depositions of his adversary, when desiring to use such as evidence, cannot introduce a part of the depositions, without offering the whole. — Southern Railway v. Hubbard, 116 Ala. 387, 22 South. 541, and cases there cited; Birmingham Railway, Light & Power Co. v. Lavender, 158 Ala. 534, 47 South. 1026.

It would be a perversion of the purposes of the statute to permit the rule of construction placed upon it to be evaded, and a part only of the answer introduced, upon the suggestion of laying a predicate for impeachment. Moreover, the defendant, by subsequent question asked the plaintiff (and answered without objection), embodying substantially all that Avas contained in the pact of the deposition sought to be introduced, had the same opportunity and advantage for purpose of a predicate for impeachment. We axe of the opinion, and so hold, that the rulings of the trial court in this respect were free from reversible error.

The evidence Avas without dispute to the effect that the sudden starting of the car with a jerk threw the “passenger” against the plaintiff, knocking her down, and resulting in the injury complained of; and charge 1, requested by the defendant, was therefore properly refused. The theory of the charge was unsupported by any evidence, or any reasonable inference to be deduced from the evidence.

This may be said of charge 3, refused to the defendant. There was no evidence, nor any reasonable inference afforded by the evidence, that the plaintiff purposely refrained from paying her fare.

We find no reversible error in the record,' and the judgment will be affirmed.

Affirmed.

Anderson, Sayre, and Evans, JJ., concur.