B'ham Ry. L. & P. Co. v. Barrett

ON REHEARING.

An examination of the authorities cited by appellee in support of the correctness of the charge as to the degree of care to be exacted of carriers of passengers in the conduct of their business does not disclose any which in fact supports the charge which we have condemned. An example of their inaptitude is found in the quotation from Nellis on Street Railway Accident Law, § 6, p. 47: “When the passenger is in the exercise of ordinary care, the degree of care required on the part of the carrier to secure his safety must be the highest degree of care, reasonably to be expected from human vigilance and foresight in view of the mode and character of the conveyance in use, and reasonably consistent with the efficient operation of the road and practical prosecution of the business of the carrier.” This does not support the condemned charge, but does fully support our views as originally expressed. It is *285 claimed that the charge was copied almost word for word from 2 Brickwood Sackett, Instruction to Juries, p. 1130. But the charge there approved is this: “The jury are instructed that common carriers of passengers are required to do all that human care, vigilance, and foresight can reasonably do, in view of the character and mode of conveyance adopted, to prevent accidents to passengers.” The departure from this language was radical, and needs no comment. It may be, as complained by counsel, that we are drawing a fine distinction, but the law is full of such distinctions, and, indeed, without them no principle could long survive the minutely graduated encroachments which constantly threaten their integrity. In regard to the other condemned charge, we are now inclined to the view urged by counsel that, as applied to the evidence with respect to the place and circumstances of the alleged injury, its giving was not erroneous, because not in fact misleading.

It is insisted that in holding that the trial court committed reversible error in sustaining plaintiff’s objection to the question propounded by defendant to the witness Wrenn, there being no statement by defendant’s counsel informing the court what answer was expected from the witness, we are overriding a long line of our decisions to the contrary.

In view of the frequent misconception of the rule established by our decisions on that subject, a brief review of them here may be both timely and useful. It appears that the first definite statement of the rule was made in Burns v. State, 49 Ala. 370 . A witness had testified that the defendant came to him and said “that he wanted them to go with him, to help take care of the deceased, whom he had shot.” The defendant then asked the witness “to state all that he (defendant) said *286 at that time.” On the state’s objection the question was excluded. Brickell, J., said: “The bill of exceptions does not inform us what the prisoner said at the same time, and in the same connection, which the court declined to permit him to give in evidence. Though it may have been part of the same conversation of which the state gave evidence, we cannot say that it had any reference to the killing, or to the circumstances attending the killing; nor can we say that its exclusion did not benefit, rather than prejudice, the pxfisoner. An exception to the admission or rejection of evidence should always disclose the evidence admitted or rejected, or a revising court cannot intelligibly (intelligently?) pass judgment on it.” In Stewart v State, 63 Ala. 199 , dealing similarly with the same question, it was said, per Stone, J.: “The question * * * which the witness was not allowed to answer was very general in its terms. Almost anything’ the accused may have said i:' * would have been responsive to it. The circuit coxxrt was not informed what was expected to be proved by this witness; nor can we know whether the answer would have been legal evidence or not.” So in Allen v. State, 73 Ala. 23 , it was said by -the saxne justice: “We are not informed what would have be'exx the answer of the witness to the questions which the court disallowed. For axxght that we can know, the answer may have been inxixxaterial, foreign to the issue, or otherwise illegal. * * * To put the court in error, the record shoxxld inform us what answer the witness was expected to give. As the question arose on cross-examination, the interrogatory itself might have disclosed the answer expected. And, when the question arises on direct examination, counsel can inform the court what he proposes to prove.” — In Roberts v. State, 68 Ala. 515, 524 , the rule is thus expounded by *287 Somerville, J.: “We cannot see that the court erred in excluding the question propounded at the instance of the accused, asking ‘what businss Rankin (the deceased) had been engaged in? The question was not answered, nor was it stated what was proposed to be proved in response- to it. It was too general, moreover, to authorize us to infer that the answer, if allowed to be made, would have been either relevant, material, or beneficial to the defendant.”

With these several former statements of the rule clearly in mind, a definite restatement of the rule was made in Phoenix Ins. Co. v. Moog, 78 Ala. 284, 308 ( 56 Am. Rep. 31 ), in the following language, per Somerville, J.: “The exclusion of the several questions propounded by the defendant to the witness Cook was clearly erroneous. The true rule on this subject is as follows: If a question is propounded to a witness on the stand, the answer to which is prima facie relevant and legal testimony, and the court refuses to allow the witness to answer, this is error, for which a revarsal will lie; for the reason that ‘the injury to the party consists in the refusal of the court to permit the answer to be given, and he can do nothing more to prove the wrong done him than to show that he has asked a legal question, the answer to which, by the action of the court, was denied him.’ — Nailor v. Williams, 8 Wall. 107 [ 19 L. Ed. 3 -48]. Where no answer is given by the witness, as in this case, this does not repel the presumption of injury, provided the question itself is sufficiently definite to indicate the nature of the answer sought to be elicited, and such answer is prima facie relevant, material, and otherwise legal. — Roberts v. State, 68 Ala. 515 . In such a case, it would add little or nothing to the enlightenment of the court for the counsel to state what is proposed to be proved by the question, *288 because this is shown by the question itself, so far as to justify the admissibility of the answer. It is only when the question is so general in its nature that the answer sought to be elicited may as well be prima facie irrelevant and illegal testimony, as relevant and legal, that the exclusion of the question, and the refusal of the court to allow the witness to answer it, will be regarded as free from error. It is reasonable in this class of cases to require the counsel to inform the court what is proposed to be proved, so that the court may see that he seeks to elicit testimony which is proper to be admitted, and not that which is improper. — Allen v. State, 73 Ala. 23 . If this is not done, it may be inferred by the court that, in view of the broad and comprehensive nature of the interrogatory, the answer of the witness might have been illegal, irrelevant, or even [non-] beneficial to the party. There should be no such presumption, however, in the first case, because the question is sufficiently narrow to preclude it, and the party has the legal right to examine the witness as to all relevant and legal matters within his knowledge. When the court denies this right, and refuses to permit its exercise, there is manifest error; and error imports the presumption of injury, unless it is clearly repelled. The adjudged cases in this state can all be harmonized in our opinion with this principle, although some expressions may be found which seem susceptible of a contrary construction. — Burns v. State, 49 Ala. 370 . However this may be, the rule above announced is, in our opinion, the correct one.” The rule as stated in the Moog Case was reaffirmed in Parrish v. State, 139 Ala. 16, 46 , 36 South. 1012 , 1021, where it was said, per Tyson, J.: “It is true the question was not answered, and it is not made to appear what the answer would have been, except from the question itself. But this is not necessary *289 to constitute reversible error, if the question is sufficiently definite to show that the answer would be prima facie relevant, and it indicates the nature of the answer. It is only when the question is so general that an answer cannot be said to be prima facie admissible that a party is required to inform the court what is proposed to be proven, so that the court may see that the evidence he seeks to elicit is proper. The question in this case clearly showed that it was intended to elicit an answer admissible and relevant, as tending to impeach the evidence of the witness to whom it was propounded. This is as clearly shown by the question as if the answer had been stated to the court. — Phoenix Ins. Co. v. Moog, 78 Ala. 284 , 56 Am. Rep. 31 ; Fincher’s Case, 58 Ala. 215 .” The same test is also applied as the basis for exclusion in Sibley v. Smith, 167 Ala. 158 , 52 South. 27 , citing the Moog Case. And in Brent v. Baldwin, 160 Ala. 635, 641 , 49 South. 343, 346 , in justifying the exclusion of a very general question, it was said, per Dowdell, C. J.: “The trial court was not informed as to what the defendant expected to elicit in answer to this question. It cannot be determined from the question whether the answer would be material or not. The materiality of the answer not being disclosed by the question, the trial court cannot be put in error in sustaining an objection to it.” So in Montgomery v. State, 160 Ala. 7, 24 ,. 49 South. 902, 909 , the exclusion of the question was justified because “the court was not advised as to Avhat the expected ansAver Avould be, and the question Avas susceptible of an ansAver that would have been wholly immaterial.” In B. R., L. & P. Co. v. Selhorst, 165 Ala. 475 , 51 South. 568 , the exclusion Avas justified because the ansAver was prima facie irrelevant, and there Avas no statement of a purpose to .shoAV its relevancy. Other applications of the rule, in accord *290 with the foregoing will be found in Nevers Lumber Co. v. Fields, 151 Ala. 367, 371 , 44 South. 81 ; Sloss-Sheffield S. & I. Co. v. Sharp, 156 Ala. 284 -289, 47 South. 279 ; Supreme Lodge v. Baker, 163 Ala. 518 , 50 South. 958 ; Weller & Co. v. Camp, 169 Ala. 275, 283 , 52 South. 929 , 28 L. R. A. (N. S.) 1106. The cases of Tolbert v. State, 87 Ala. 27 , 6 South. 284 , Ross v. State, 139 Ala. 144 , 36 South. 718 , Smith v. State, 142 Ala. 14 , 39 South. 329 , and Hill v. State, 156 Ala. 3 , 46 South. 864 , justified the exclusion of very general questions because the record did not show what answer was expected.- This was merely a shorthand statement of the rule, and did not mean that the specific answer must be shown, but only that the answer would be relevant and competent evidence. We reaffirm the rule as stated in Phoenix Ins. Co. v. Moog, 78 Ala. 284, 308 , 56 Am. Rep. 31 , and which has always since then been the law in this state. Where a question on its face calls for an answer which would clearly be both relevant and competent evidence, it should be allowed; and its exclusion must be deemed erroneous, and prima facie prejudicial. Of course, the general rule always applies that a witness must be qualified to testify by knowledge of the matter inquired about. — T. C., I. & R. R. Co. v. Hans-ford, 125 Ala. 349, 365 , 28 South. 45 , 82 Am. St. Rep. 241 ; A. G. S. R. R. Co. v. Linn, 103 Ala. 134, 139 , 15 South. 508 ; Graham v. State, 153 Ala. 38 , 45 South. 580 ; Williams v. City of Talladega, 164 Ala. 633, 650 , 51 South. 330 .

A witness is presumed to be competent unless the contrary is made to appear. — B. & L. & P. Co. v. Jung, 161 Ala. 461 , 49 South. 434 , 18 Ann. Cas. 557. But he is not presumed to be qualified by knowledge, and his proponent must show that he has such knowledge, or has had the opportunity to know, if it does not other *291 wise appear. Of course, this may as well be shown cirsumstantially, as by his direct affirmation. The absence of such a showing was stated by Judge Stone in Tolbert v. State, 87, Ala. 27, 6 South. 284 , as one of the reasons that justified the exclusion of a question to a witness.

In the present case, the question to the witness Wrenn called for a clearly relevant and competent answer, and it appeared that he was an eyewitness, and had full knowledge of the fact. It is therefore within the rule we have declared, and its exclusion was error, and prejudicial so far as the record informs us.

The application for rehearing is overruled. All the Justices concur.