Mobile O. R. Co. v. Williams

*129 ANDERSON, C. J. This case has been before this court on several former occasions and is reported. 217 Ala. 707, 114 So. 918; 219 Ala. 238, 121 So. 722; 221 Ala. 402, 129 So. 60. It is earnestly insisted and ably argued, as was done upon the last appeal, that the defendant was due the general affirmative charge because of insufficient proof of negligence on the part of defendant’s agents or servants; that the evidence was merely speculative and conjectural and did not sustain the verdict. This question was fully discussed and dealt with in the last two appeals, and we find no such material change in the evidence upon this appeal as to cause us to recede from the former holding that the negligence of the defendant’s servants in causing the cars to he moved without first ascertaining that the intestate was not in a place of danger and would not be thereby injured was a question for the jury. New York Central Railroad Co. v. Marcone, 281 U. S. 345, 50 S. Ct. 294, 74 L. Ed. 892. The trial court did not commit reversible error in permitting the question involved in the 9th assignment of error to wit: “After your husband died did you have anything to live on outside of the insurance money you got?” It is conceded by appellant’s counsel that the financial condition of the wife, at the time of the husband’s death, was a proper inquiry, and that this fact had already been shown; but it is insisted that this question was án effort to show her financial condition at a later date, and was calculated to arouse the sympathy of the jury. We think the question is so worded as to relate to the financial condition of the wife at the time of the husband’s death or immediately thereafter. As to assignment of error 18, the defendant was not thereby injured, as the question was not answered. The answer of the witness consisted of' a general discussion of the value and earning capacity of certain securities, and gave no definite answer to the question asked. As to assignment of error 19, the witness did give the per cent, for 1926, the death of the intestate, but also gave it as the date of the trial so the defendant was not thereby injured. As to assignment of error 20, the witness said there was little or no change from 1926 to the time of the trial. The trial court did not commit reversible error in permitting the question to the witness Grandahl, made the basis of the 23d assignment of error. It merely called for the result of a mathematical calculation of which the court had common knowledge, and of which neither side can complain. L. & N. R. R. v. Mothershed, 97 Ala. 267, 12 So. 714. The objections to the questions to the witness Kostmayer, as to the streets, blocks, and distance at or near the scene of the injury, whether relevant or not, were harmless. Assignments of error 30 and 31 relate to exceptions to the oral charge as to the duty of the defendant to have the air brakes coupled, and that a failure to do so was negligence. This was error, as held upon a former appeal, 221 Ala. 402, 129 So. 60, wherein the court held that the failure to have the air brakes coupled was not the proximate cause of the injury and should not have been emphasized so as to mislead to the prejudice of the defendant. True, the original opinion was based upon the fact that negligence in this respect, if there was any, was not charged in the complaint, and this was corrected by the opinion on rehearing, and it was then held that the complaint was broad enough to cover such negligence; but the court still held that the charge, as to the air couplings, was erroneous, as negligence in this regard was not the proximate cause of the injury, and a charge with reference thereto would tend to prejudice the jury. As we understand, the present excepted to portions of the oral charge are mere statements as to the legal results of a failure to have the air brakes coupled, but do not instruct or direct a verdict for the plaintiff as for a violation of the statute or rule. It was a mere abstract statement, and, standing alone, may have been prejudicial; but, when considered in connection with the defendant’s given charge 23, the latter would explain or neutralize the oral charge. But this cannot be done as the plaintiff, by her given written charges G and Y, put this issue back into the ease. Charge G is, in .effect, in conflict with the defendant’s given charge 23, and charge Y so explains or qualifies defendant’s given charge 23 as to destroy the meaning and effect -of same. We must therefore hold that the trial court committed reversible error in the excepted to portions of the oral charge and in giving the plaintiff’s written charges G and Y.. In order that we may not be misunderstood upon the next trial, we think the last opinion as reported in 221 Ala. 402, 129 *130 So. 60, hacl the effect of eliminating from the case the failure to connect or. couple the air brakes upon the theory that, whether required or not as to the cars in question, but conceding that it was required, a failure to do so was not the proximate cause of the injury, and that this question had no place in the case. That was the effect of our opinion then, and which is also our present conclusion. There was no error in refusing the defendant’s requested charge 15. If not otherwise faulty, it called upon the jury to indulge in a speculation of the future as to the health, condition, etc., of Mose Williams, had he lived. There was no error in refusing charges 20, 36, and 35, requested by the defendant ; they are confusing, misleading, or argumentative. Assignments of error 35 and 46 relate to the action of the trial court in not eliminating the element of damages dealt with in the excepted to part of the oral charge and the defendant’s refused charge 12. It is not contended in the argument that such damages ar.e not recoverable, but that the same are special damages which should be specifically claimed. We are inclined to agree with counsel that the same should have been claimed, but proof was made of same without objection, and it may be that, if there was no other reversible question in this base, we could treat the present question as not being reversible error under Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; Birmingham Southern R. Co. v. Goodwin, 202 Ala. 601, 81 So. 339; Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665; American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507; but we suggest, as a matter of caution, that if such damage be insisted upon on the next trial they should be specially claimed. This is not a question of variance or failure of proof to come within circuit court rule 34 as suggested by appellee’s counsel, but relates to pro-bata without allegata. For the errors designated, the judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. THOMAS, BOULDIN, and BROWN, JJ., concur.