Louisville & Nashville R. R. v. Ratliffe

SIMPSON, J. This action was brought, by the appellee against the appellant, for damages on account of the death of appellee’s intestate. After the court had asked the plaintiff to pass upon the jury, and the plaintiff had challenged one juror, the defendant demanded a struck jury, which was refused for the reason that the demand came too late. Section 4635 of the Code of 1907 gives to each party the right to demand and have a struck jury. This court held that, if this demand is not made “until the organization of the jury has been entered upon, the court is not bound to grant the request.” — McArthur v. Carrie, Adm'x, 32 Ala. 75, 84, 70 Am. Dec. 529. The demand in this case came too late, and the court properly refused it. The case of [150] Goodson v. Brothers, Adm’r, 111 Ala. 589, 20 South. 443, does not conflict with the case cited, but merely holds that it is too late to demand a struck jury after the jury has been accepted by the plaintiff. The question as to the qualifications of the witness Eskridge to testify as an expert was not, in the opinion of this court, raised by proper objections. — Brumley v. Flint, 87 Cal. 471, 25 Pac. 683. Consequently there was no error in overruling the objections made. . There was no error in the refusal to give the general affirmative charge, in favor of the defendant, as to the second count of. the complaint. There was evidence from which the jury could infer that those in charge of the engine saw the intestate in a. perilous position for a sufficient length of time to have prevented the injury by the use of ordinary care. That perilous position consisted in the facts that she was engaged in picking up papers near and on the track, apparently unconscious of the approach of the train, mpving towards the track when first seen, and sometimes moving along the ends of the cross-ties, near enough to be struck by the overhanging side of the engine, again leaning over the track to' pick up papers, and even stepping in between the rails and moving out again. The position and apparent unconcern of the intestate was sufficient to call for extra care, and it was not sufficient to merely request the switchman standing on the running board to look out for her, when the circumstances were such as to indicate that she, from some cause being unmindful of the approach of the engine, was liable at any moment to step onto the track, when it would be too late to stop the engine. The next and last insistence of the appellant is that the court erred in overruling the motion to set aside [151] the verdict on the ground that it is a quotient verdict. The judgment of the court is affirmed . Affirmed. Dowdell, C. J., and Denson and Mayfield, JJ., 'concur.