Birmingham Railway L. & P. Co. v. Moore

HARALSON, J. There is no merit in the demurrer to the complaint. — Armstrong v. Montgomery Street Railway Co., 123 Ala. 233, 26 South. 349. There was no error in overruling defendant’s objection to the question propounded by plaintiff to Hr. Johnson: “What did she complain of, doctor, when you were called to see her?” — Birmingham Union R. R. Co. v. Hale, 90 Ala. 8, 8 South. 142, 24 Am. St. Rep. 748. The plaintiff testified on cross-examination that there were three or four white ladies on the car at the time of the injury. It was obviously not material to any issue in the case to inquire who was on the car, or whether the passengers were white, although allowable to elicit the information when testing a witness on cross-examination. The court declined to allow the defendant’s witness, the motormau, to answer the question, “Ho you remember whether or not you had on another -white lady?” An affirmative answer would not have contradicted plaintiff on auv material issue, nor would it have shown a duty cm plaintiff’s part to introduce such white lady as a witness, as counsed for appellant argue to support the exception. Moreover, if the witness had answered the question by saying he remembered he “had on an [332] other white lady,” he would thereby have corroborated the plaintiff, and if he had answered he did not remember as to the matter inquired about,' the answer would have amounted to nothing. The ruling does not constitute reversible error. Charges 1 and 2, requested by defendant, were properly refused in that, if for no other reason, they assumed that plaintiff alighted from the car, and this might have been taken by the jury as an intimation that plaintiff was not thrown therefrom. — Birmingham R., L. & P. Co. v. Lindsey, 140 Ala. 312, 37 South. 289. Charges 3, 4 and 5 ere properly refused. The general charge in favor of defendant could not have been given on either count, since there is conflict in the evidence. It is not a case cliargiug corporate negligence as distinguished from the individual negligence of the defendant’s agent, as is suggested by counsel for defendant. — Collins v. A. G. S. R. R. Co., 104 Ala. 391, 16 South. 140; Lampkin v. L. & N. R. R. Co., 106 Ala. 287, 17 South. 448; Birmingham Ry. & Elec. Co. v. Baird, 130 Ala. 334, 30 South. 456; State v. May, 135 Ala. 483, 33 South. 30; City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389. The plea of the general issue was an admission of the character, in which plaintiff sues, such as is set out in the declaration. — Strickland v. Burns, 14 Ala. 511. Charge 6, that if the jury believe the evidence, plaintiff was of sufficient judgment and discretion to be guilty of contributory negligence, was properly refused. There was no contest as to the age and discretion of the plaintiff.- If charge 7 asserted a correct proposition applicable to the case, appellant had all the benefit of the proposition asserted, when the court gave at its request charges 1 and 2 of its given series. [333] We cannot say that the trial judge erred in denying the motion for a new trial. He heard the witnesses testify, and the record does not disclose that decided preponderance of evidence against the verdict necessary to convince us it is wrong or unjust. — Cobb v. Malone, 92 Ala. 630, 9 South. 738. Affirmed. Dowdell, Anderson, and Denson, JJ., concur.