St. Louis-San Francisco Ry. Co. v. Swaney

ANDERSON, C. J. It may be conceded that the transcript of the plaintiff’s testimony on the former trial was sufficiently identified by the testimony of Tyler in connection with Manly, the stenographer who took it down, and was admissible under the third rule as laid down in the case of Birmingham L. & P. Co. v. Seaborn, 168 Ala. 658, 53 So. 241. But it contained much immaterial matter, including certain answers of Helton as well as the plaintiff, and, in order to put the trial court in error, the good should have been separated from the bad when it was offered in evidence. Upon the close of the testimony the plaintiff requested the following written charge: “If you believe from the evidence that the plaintiff, Mr. Swaney, was not in the car at the time and place named by Mr. Helton, then you should find for the plaintiff.” The record recites that: “The defendants in open court consented to the giving of said charge, and the same was read to the jury.” ' This was, in effect an admission of the liability and responsibility of the defendants for the arrest and prosecution, and narrowed the issues down to whether or not the plaintiff was in the car when arrested by Helton and the amount of damages he was entitled to recover if he was not in said. car. True, the consent did not specify any particular count under which the plaintiff would be entitled to recover, but it admitted a liability with the hypothesis under some one of them, and the refusal to eliminate either of them was of no injury to the defendants, as they each claim the same amount, and the same character of damages was recoverable under each of them. The plaintiff denied being in the car, and he was corroborated, in a sense, by the witness, Tucker, and we cannot say that the finding of the jury that he was not in the car was so contrary to the great weight of the evidence as to put the trial court in error for refusing a new trial upon this ground. While the slips of themselves would indicate a quotient verdict, the testimony of some of the jurors negatives a quotient ver-' diet strictly speaking. The judgment of the circuit court is affirmed. Affirmed. All the Justices concur.