Birmingham Electric Co. v. Mealing

SAYRE, J.. This case went to the jury on the first count of appellee’s complaint alleging that she had suffered injuries to hex-person for that, being at the time a passenger on defendant’s electric street car, defendant’s agents or servants in chax-ge so negligently operated the same as to cause plaintiff to be thrown violently fx’om her seat and against the seat in front of her whereby she suffered injuries alleged in the complaint. The evidence was that the ear in which plaintiff was a passenger was stopped by, or because of, a collision with a large automobile. Plaintiff was a passenger, as has been noted, and if she suffered injuries by reason of the operation of the street ear, this put the bux-den on defendant to show that there was no negligence. Defendant by pleading and evidence denied any negligence, denied that the car had stopped with violence enough to cause.discomfort or injury to any passenger-, denied that plaintiff had been hurt, but alleged that, if hurt, her injury was caused by the fact that she had negligently protruded an arm through an open window. The evidence as to the issues thus formed was in conflict, and the result was for the jury to determine. Defendant, - appellant, complains of the rulings of the trial court in the matter of evidence offered and charges given and refused. Plaintiff’s evidence was that at the' time she was pregnant, and that the accident had brought on painful symptoms of miS9arriage, along with other injuries. On that account she had received medical attention fox-seven or eight days. Charges 5 and 13, requested by defendant, were well refused. Defendant’s proposition here is that plaintiff should not be allowed to recover damages for suffering brought on by the collision operating on her peculiar condition for the reason that the complaint had nothing to say of a threatened miscarriage or the symptoms incident to that condition. The complaint was, among other things, that plaintiff had been injured internally and had been severely shocked and caused to suffer mental and physical pain. This, we think, covered the case shown in plaintiff’s evidence. On behalf of charge 5 it is further said that plaintiff should not have been allowed to recover any damage caused “solely by her pregnancy.” As to that the charge was misleading. The argument is that if defendant’s alleged negligence had no part in bringing on the symptoms of miscarriage, plaintiff could not recover on account of the suffering incident to those symptoms. True, of course; but that is not the proposition of the charge, which was open to the construction by the jury that the peculiar suffering resulting from such' symptoms was not to be compensated notwithstanding it was brought on by defendant’s alleged negligence. The judgment cannot be reversed on account of the court’s refusal of charge 6 requested by defendant. There was evidence going to show plaintiff’s liability for medicines bought and doctor’s bill incurred by reason of her injuries, but there was no evidence of the value of the medicines ox- medical serv *599 ices. • Still, plaintiff was entitled to recover, if at all, nominal damages for these items, and so error will not he predicated on the refusal of the charge in the form requested. Sloss-Sheffield Steel & Iron Co. v. Stewart, 172 Ala. 516, 55 So. 785; Birmingham Ry. Light & Power Co. v. Bush, 175 Ala. 49, 56 So. 731. Charge 7 was refused without error.. Plaintiff’s evidence tended to establish that by reason of the shock of the accident in which she was involved she was more liable to miscarriage than if the shock had not been suffered. At the time of the trial plaintiff had not yet been delivered. We will not say that these facts may not have been considered by the jury as evidence of permanent injury within the meaning of the complaint. Defendant’s charge 8 should have been given. A. G. S. v. Frazier, 93 Ala. 51, 9 So. 303, 30 Am. St. Rep. 28; Venable v. Venable, 165 Ala. 627, 51 So. 833. Charge 9, requested by 'defendant, was abstract. There was nothing in the ease to require the giving of this charge. Defendant’s charge 10 also involved an abstraction. Under tendencies of the evidence, that is, that defendant’s agents operating its car became aware of the fact that a collision was impending and that the severity of the shock to plaintiff might have been moderated by stopxiing the car or slowing it up before the impact, charge 11, requested by defendant, was properly refused. The charge takes no account of the stated aspect of the case, and was refused without error even though it be true as a general proposition that carriers are under no duty to anticipate such occurrences. Defendant’s charge 15 might have been refused without error, because it pretermitted consideration of evidence in the cause which may have been accepted by the jury as lending weight to plaintiff’s testimony. Wilkins v. State, 98 Ala. 1, 13 So. 312. Statements made to plaintiff by defendant’s conductor after the accident and statements made at that time by plaintiff were not of the res gestas of the accident and should not have been admitted as and when they were admitted over defendant’s objection. A. G. S. v. Hawk, 72 Ala. 112, 47 Am. Rep. 403. These statements might have been admissible by way of impeachment, but it does not appear that they were offered ox-admitted for that purpose. The general affirmative charge and its equivalents were refused without error. For the errors specified, the judgment must be reversed. Reversed and remanded. ANDERSON, C. J., and .GARDNER and MILLER, JJ., concur.