[Martin v. Smith.] experiment to ascertain the size of the hole made, as compared with the size of the ball which made it, as applicable to this case, is not distinguishable from like experiments denounced as improper and inadmissible in the case of Tesney v. State, 77 Ala. 33, and more recent of Miller v. The State," 107 Ala. 40. 107 Ala. 40. In the case at bar, one of the issues was whether the brick fell because of the improper construction of the wall and cornice. There was some evidence tending to this conclusion. In rebuttal the defendants were permitted to prove that a cornice of the building similarly constructed held up the weight of a man. The reasons for excluding the evidence in the one case are equally applicable to the other. The leading principles of law which control the merits of the case, seem to us so clear, we do not think there will be any difficulty in framing proper instructions for the jury on another trial. Reversed and remanded. Martin v. Smith. Action upon a Promissory Note. 1. Promissory note; execution without reading it no defense.-Where one voluntarily executes a note without reading it, and he is not induced to its execution by false representations of its contents, he can not be relieved from liability thereon upon the ground that the note was different from what he thought it was, and contained stipulations or provisions to which he did not intend to agree. 2. Same; same; false representations; inadmissible evidence.—In an action upon a promissory note, evidence that shortly before the execution of the note sued on, the defendant had been induced by fraudulent representations to sign a similar paper to the payee, which had no connection with the note in suit, is inadmissible in the absence of proof of false representations made by the payee concerning the instrument sued on. APPEAL from the Circuit Court of Marshall. This action was brought by the appellee, Jasper Smith, against the appellant, Joseph H. Martin, and counted upon a promissory note. The defendant filed a sworn [Martin v. Smith.] plea of non est factum, and on this plea issue was joined and the trial was had. After formal proof by the attesting witness, plaintiff offered in evidence an instrument in writing, dated January 8, 1894, embracing not only a promissory note of the character described in the complaint, but also a mortgage on defendant's crop for the year 1894, and each succeeding year thereafter until paid. This instrument was admitted in evidence over defendant's objection and exception, and plaintiff rested. Defendant then introduced evidence tending to show that at the date of this instrument he was indebted to plaintiff, but there was some dispute between them as to the precise amount due. Plaintiff placed the note in the hands of Lusk & Bell, attorneys, for settlement, and they sent their clerk, one Henry, to see about the matter. Defendant promised Henry to come and attend to the matter. A few days later he came to the office of Lusk & Bell, and there found Henry. Defendant told Henry he would not give a mortgage for the debt, but would give a waive note. Henry and defendant then went to see plaintiff to get the correct amount due. On the return to Lusk & Bell's office, Henry sat down to a table and filled out a blank and presented it to defendant for his signature, and defendant signed it without reading it. This was the paper offered in evidence and defendant did not know that it was a mortgage. Henry did not tell defendant it was a mortgage. He believed when he signed it that it was only a note, and knew no better till long afterwards. Defendant offered thereupon to prove that a few minutes before he signed the instrument sued on, he and one Bagwell signed one of the same kind of blanks as the one sued on, for a joint and several debt they owed Smith; that Henry also filled out this blank for them to sign, and that when Henry presented it to them for their signatures he told them that it was not a mortgage, but only awaiver note; and that the blank which Henry represented to them not to be a mortgage was a mortgage, and was the same kind of blank which defendant signed and on which this suit is brought. The court sustained an objection by plaintiff to this testimony and excluded it. To this action of the court defendant then and there exexcepted. This was substantially all the evidence; and on this evidence the court, at the request of the plaintiff, [Martin v. Smith.] charged the jury in writing, that if they believed the evidence, they must find for the plaintiff. To the giving of this charge the defendant then and there excepted. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the rulings of the court upon the evidence and the giving of the general affirmative charge for the plaintiff. O. D. STREET, for appellant.-Where one obtains a signature to an instrument by fraud or misrepresentation, such instrument is void, and it is no answer to the fraud to say that the defendant had an opportunity of detecting the falsity or misrepresentations by reading the instrument.-Burroughs v. Guano Co., 81 Ala. 255; Guano Co. v. Anglin, 82 Ala. 492; Bank v. Webb, 82 Ala. 132. Evidence that Henry had about the same time perpetrated similar frauds upon defendant or other persons was admissible for the purpose of assisting the jury in arriving at the purpose and intention of Henry in filling out a mortgage for defendant to sign when defendant had notified him that he would not give a mortgage.1 Greenleaf Evidence, § 53 and note; 7 Amer. & Eng. Encyc. of Law, pp. 58-62; McKenney v. Dingley, 4 Greenl. (Me.) 172; Cary v. Hotailing, 1 Hill 311; Allison v. Matthien, 3 Johns. 233; Regina v. Gray, 4 F. & F. 1102; Regina v. Richardson, 2 F. & F. 343; Butler v. Watkins, 13 Wall. 456. LUSK & BELL, contra.-A person signing a paper without reading or asking that same be read is so negligent that, in the absence of all misrepresentation or artifice by the party with whom he was dealing, he is liable for the debt, and can not set up his own inattention to invalidate it.-Goetter v. Pickett, 61 Ala. 387; David v. Snider, 70 Ala. 315. The affirmative charge given at the instance of the plaintiff was proper.-Winter v. Pool, 100 Ala. 503; Burroughs v. Guano Co., 81 Ala. 255; Cannon v. Lindsay, 85 Ala. 198; Goetter v. Pickett, 61 Ala. 387; Swift v. Fitzhugh, 9 Port. 67. HEAD, J.-This is another case where a party voluntarily executed a written obligation without reading [Alabama Great Southern Railroad Co. v. Moorer.] it, being induced thereto by no false representation of its contents, and now supposes himself entitled to be relieved therefrom because the document proved to be different from what he thought. The fact that shortly before the execution of the instrument he had been fraudulently induced to sign, with a co-maker, a similar paper to same payee, taken by the same agent of the payee, who committed the fraud, in a transaction having no connection with the one under consideration, was not admissible in evidence, in the absence of any proof that the same agent made false representations concerning the instrument in question. It matters not how many other frauds may have been committed; if there was none in the transaction under review, they avail nothing. It may be conceded that if there had been proof of fraud inducing the execution of the contract, other similar frauds perpetrated by the same party, near the same time, might have been received, within proper limitations, as circumstances in aid of such proof; but they could not be received for the purpose of making out, independently, a case of fraud in a transaction with which they had no connection. As it is unnecessary to pass upon the question, we do not decide whether such evidence is admissible at all or not, even had there been independent proof of fraud in this case. Affirmed. 116 642 124 116, 116 642 131 595 116 642 133 373 Alabama Great Southern Railroad Co. Action against a Railroad Company to recover Damages for 1. Duty of railroad to trespassers.—A railroad company is not bound to keep a lookout for trespassers upon its track. 2. Same; when trespasser is a child.—A railroad company is no more bound to keep a lookout for, or to keep its premises safe, for children who are trespassers or mere licensees upon its track, not invited or enticed by it, than it is to keep a lookout or to keep its track safe for adults. 3. Negligence; wanton negligence or willful wrong.—A mere error of [Alabama Great Southern Railroad Co. v. Moorer.] judgment as the result of doing an act or omitting to do an act, having no evil purpose or intent, or consciousness of probable injury, may constitute simple negligence, but can not rise to the degree of wanton negligence or willful wrong. 4. Action against railroad company for killing of a child; when negligence not shown.—In an action against a railroad company to recover damages for the alleged negligent killing of a child, where it is shown that the child was running along the defendant's track, and that as soon as the engineer discovered him, which he did as soon as it was possible, by reason of the construction of the track, he blew his whistle, put on brakes, reversed the engine and was diligent in the discharge of his duties to prevent the accident, and there is an entire absence of evidence tending to show that he was reckless or indifferent to the peril of the child, or was conscious at the time that he was omitting to use any means at hand which the circumstances reasonably required to avert the injury, the defendant can not be charged with either simple negligence, wanton negligence or willful wrong. APPEAL from the Circuit Court of St. Clair. This was an action brought by a father for the negligent killing of a minor son about nine years of age. The complaint contains fourteen counts. Demurrers were sustained to the 2d, 3d, 4th and 5th counts. The 1st, 12th and 13th counts alleged simple negligence The 6th, 7th, 8th, 9th, 10th, 11th and 14th counts alleged willful, wanton and intentional negligence. A plea of "not guilty" was interposed to the entire complaint, and pleas of contributory negligence were interposed to the 1st, 12th and 13th counts. The jury found the issue in favor of the defendant as to the counts alleging simple negligence. The court was requested to charge the jury that if they believed all the evidence they should find a verdict for the defendant. The court was also requested to give the following written charge, numbered 4: "The court charges the jury that if they believe all the evidence, they should find a verdict for the defendant on the counts of the complaint which charge willful, wanton or intentional negligence." The court was also requested to give the affirmative charge as to each count of the complaint charging willful, wanton or intentional negligence. The court refused to give each of these charges requested by defendant, and the defendant separately excepted to the refusal to give each of them. The other facts of the case are sufficiently stated in the opinion. |