Birmingham Railway, Light & Power Co. v. Rutledge

McCLELLAN, C. J. A count of the complaint ascribes plaintiff’s injuries to the “wanton and reckless negligence” of defendant’s employes in charge of the car on which plaintiff was a passenger, and goes on to allege that this wanton and reckless negligence consisted in their causing said car to approach-and cross the Louisville & Nashville Railroad, without .stopping, knowing that a Louisville & Nashville train was approaching defendant’s track, and that it would probably cross defendant’s track without stopping, and knowing that there would probably be a collision between the Louisville & Nashville train and the car upon which plaintiff was a passenger, and that the reasonable and probable result of the collision would be injury to the passengers on defendant’s said car. Under this count, in our opinion, evidence that said street car was at the time crowded with passengers, or “that there were many people on the car” was pertinent as supporting the alleged probability, and the employer’s appreciation of it that passengers would be injured by the collision. Was it not also competent as tending to color more darkly their alleged wantonness-apart from the consideration just adverted to? This court is committed to the proposition, and satisfied of its correctness, that in cases of this sort complaints of pain and suffering on the part of the alleged injured person may be adduced as original evidence tending to prove the existence of the condition or sensation complained of.- — Telegraph Co. v. Henderson, 89 Ala. 510, 521; B. U. Ry. Co. v. Hale, 90 Ala. 8, 10-11. The testimony of plaintiff’s physician: “He told me that he was hurting — hurt internally. Said he was hurting in here somewhere,” like much other testimony objected to by defendant, was of this character, and so too was the testimony of Dr. Wyman that plaintiff told him he had pains in his hips and was nervous. We, of course, cannot know precisely what figure the plaintiff cut when told by his counsel and allowed by the court against defendant’s objection “to walk the best he could before the jury.” It would be difficult if not impossible to reduce the r.esult of that experiment intelli [203] gibly to paper, and no effort to that end- was made. So we are not advised whether he did “his best” in the way of walking, or, to the - contrary, did his best in the way of impressing the jury that his powers of locomotion had been greatly impaired. Certainly there was temptation toward the latter course; and it'would seem impracticable by any sort of cross exercise, so to- say, to test the good faith of his gait. Ethically speaking there is grave doubt whether this man’s physical organism Should.have been exposed to this temptation and to the strain necessarily incident to yielding to it, if he did yield. But on legal principle the evidence is on the same plane as that afforded the jury by a view of his person in repose, or by having him stand before them to show that one leg is longer than the'other were the shortening or elongation of a leg .the thing complained of, or by exposing an arm to the jury upon invocation to do his best bending it-at the joints, the claim being that it is stiffened, and therefore, incapable of normal use, and the like; and we are not prepared to say that the court erred in allowing this walking illustration 'of the plaintiff’s alleged injuriés. Abstractly -speaking the evidence, the admission of of which is challenged by the seventeenth and eighteenth assignments of error, may appear to be of an uncertain significance; but the delicacy of the subject under inquiry not only rendered proper — even commendable— the apparent indirection and vagueness of both the question and the answer, but also accounted for and relieved such vagueness and indirection to the minds of the jurors: They knew precisely what the point of inquiry was and doubtless got the precise import' of the answer. It is not always necessary to call a spade a spade. - It will suffice to sav that the exceptions made the basis of the nineteenth and twentieth assignments of error were emasculated — assuming, which we do not decide, that they had merit when reserved — by the subsequent testimony of the witness: The questions were in fact afterwards answered. • ■ • ■ • [204] The testimony of Dr. Jones as to what Mr. Morrow said to him when he sent the witness to see the plaintiff was properly admitted on the cross-examination of that witness as tending to show a bias favorable to the defendant. The witness Howell being asked: “At what rate of speed did the electric car approach the crossing?”; replied : “Well, it would be hard to judge that, because it just had started, and it could not have been running fast.” This answer was not only altogether vague, but it was potently the witness’ mere conclusion of fact from another fact. It was properly excluded. The court had the right to exclude it, and that upon plaintiff’s motion, even though it had been responsive to the question and the plaintiff had lost the right to have it excluded by failing to object to the question. But it was not really responsive. We are not of opinion that the repetition by the court of a sound and pertinent legal proposition in charging the jury is error, and it is not of consequence that the repetition is effected by giving two identical charges at the request of a party. There was but one conclusion open to the jury on the evidence in this case, viz. — that the plaintiff was injured through the negligence of defendant’s employes in bringing the car of which they had control and on which plaintiff Avas a passenger in collision with an engine running on the bisecting track of the Louisville & Nashville Railroad Company; and the city court properly instructed them to find for the plaintiff if they believed the evidence. The affirmative charge on the case generally having been properly given for the plaintiff, the refusal of the court to charge in favor of the defendant on one of the counts averring simple negligence — that of the conductor — if error, involved no injury to the defendant. Charges given must be taken Avith reference to the evidence. It Avas for the jury to assess the damages in this case upon the evidence. The court’s charge: “The jury are the sole judges of the damages to be aAvarded in [205] this case,” was a correct statement of the law. It was to be assumed that they would look to the evidence of injury in making their assessments. If the defendant apprehended they would be misled by the charge to go outside of the evidence, that supposed tendency should have been eliminated by requesting an explanatory charge. Or, if it appeared that they had gone outside of or beyond the evidence in their verdict the court had power to correct their action: That power was of course not surrendered, and the charge given had no reference to it. Its existence was not inconsistent with the sole duty of the jury in the first instance to assess the damages. The fact that some items which made up the total of Dr. Hurt’s bill for services, etc., rendered the plaintiff were not recoverable in this action furnished no justification for defendant’s 6th request for instruction. On the whole evidence it was practicable for the jury to leave out these items and include the balance of the bill in their assessment. We are unable to-say that the trial court erred in overruling defendant’s motion for a new trial. Affirmed. Ty-son, Simpson and Anderson, J.J., concurring.