Louisville & Nashville Railroad v. Elliott

SIMPSON, J. This action ivas brought by the appellee against the appellant for damages on account of a personal injury received by the plaintiff while an employe of the defendant. All of the counts of the complaint were elimiated, except the fifth count of the amended complaint, on which the case was submitted to the jury. During the examination of the witness Dr. Lowery, he testified that a competent surgeon who examined the plaintiff at the time he was hurt would be in a better situation to tell whether the plaintiff had a fractured pelvis than the witness, and that he knew Dr. Pressley. Defendant’s counsel asked this witness, “Is he a competent surgeon?” to which question the plaintiff objected, and the court sustained the objection. There is no error in this. Without the testimony of Dr. Pressley, it would be immaterial whether he was competent, or not. He was subsequently examined, and testified as to his medical education and his experience in the practice. It was for the jury to determine what weight to give to his testimony (Birmingham Ry. & Elec. Co. v. Ellard, 135 Ala. 435, 447, 33 South. 276), while it was the province of the court to determine his competency to testify as an expert, which the court did, by admitting his testimony (Encyc. Ev. 549; Coasting Co. v. Tolson, 139 U. S. 559, 11 Sup. Ct. 653, 35 L. Ed. 270; R. R. Co. v. Warren, 137 U. S. 348, 11 Sup. Ct. 96, 34 L. Ed. 681; Gulf City Ins. Co. v. Stephens, 51 Ala. 121, 125). The court holds that there was no error in sustaining the objection to the question to the witness Dr. Ptessley, “Was he, at that time, able to walk without a [426] stick?” as it called for a fact, and not for the opinion of the expert witness. The question suggested by tbe court was the proper one to be asked. There was no error in giving charges 1 and 2, requested by the plaintiff. The amount of earnings actually lost by the plaintiff was capable of exact proof, and the charges were not defective by the omission of the word “reasonably” before “compensate.” As to the other damages authorized by the first charge, it provides only for earnings which the evidence “reasonably shows,” etc., and in the second it is only for pain and suffering which the “jury are reasonably satisfied from the evidence” has been, or will be caused, etc. Moreover, the word “compensate” denotes equal remuneration, and could not carry with it an authority to award more damages than were actually proved. The appellant claims that the general charge should have been given in favor of the defendant, because there was no proof as to who placed the car in the position of proximity to the track on which plaintiff was moving, and also because the complaint alleges that the person in charge of said car is not known, and that fact is not proved. While it is true that the burden rests on the plaintiff to prove the allegations of his complaint, and while it is time that there is no definite proof as to who placed the car where it was, yet the negligence alleged is in allowing “said standing car to be or remain so close to the track” etc., and there is evidence tending to show that it is the duty of the yardmaster to see that no car is left in such position as to be dangerous to a •person on duty on another car moving on the nearby track. It was therefore a matter for the jury to find whether said car had been allowed to remain there as a result of the negligence of the yardmaster.—Tenn Coal, Iron & R. R. Co. v. Hayes, 97 Ala. 201, 206, 12 South. [427] 98; K. C. M. & B. R. R. Co. v. Burton, 97 Ala. 240, 252, 12 South. 88; Jones v. K. C. M., Ft. S. & B. R. R., 178 Mo. 528, 77 S. W. 890, 101 Am. St. Rep. 434. The case of Tuck, Adm’r, v. L. & N. R. R., 98 Ala. 150, 12 South. 168, is uot analogous to this case. In that case it was shown that it was not an unusual occurrence for a tail bolt to draw out, and that it was one of the usual accidents which might happen, without negligence. In the present case the car could not be placed or left where it was without negligence by some one, and if it was the duty of the yardmaster to see that the cars were not left in such position, the burden rested on the defendant to negative the presumption, by facts showing how the car did happen to be there. As to the question of knowledge as to who was yardmaster, the case of Ala. Great So. Ry. v. Davis, 119 Ala. 575, 588, 24 South. 862, held that the general charge should have been given, because a similar averment was disproved. In the present case the averment was not disproved; but, on the contrary, the plaintiff testified that “they had been changing yardmasters at the time I (he) got hurt. I do not know who it was at that time.” There was no error in the refusal to give charges 3, 9, 10, and 11, requested by the defendant. These charges relate only to the fact as to who placed the car in the position, while, as before stated, the negligence complained of is allowing the car to be and remain in such position, and, if it was the duty of the yardmaster to see that no car was allowed to remain in a position of danger, it matters not who placed it there. There was no error in the refusal to give charge 4, as it failed to hypothesize that the negligence alleged was the proximate cause of the injury. [428] There was no error in the refusal to give charge 8, requested by the defendant, as it placed a higher degree of care on the plaintiff in the matter -of looking out for obstructions than the law or the evidence justifies. There was no error in the refusal to give the fifth charge requested by the defendant. Although the plaintiff might have been able to “see the car,” yet, unless he could have also discovered that it was so near as to be dangerous, he would not be guilty of contributory negligence in not avoiding it. There was no error in the refusal to give charges 12, 13, and 15, requested by the defendant, “presenting the question as to the duty of plantiff to select the safer place to ride.” Said charges failed to state that the danger of occupying the place chosen was either known to the plaintiff, or so obvious as to charge him with notice. In addition, Justice McClellan thinks that plea 2 does not cover the negligent selection charged. We cannot say that the amount of the verdict is so excessive as to justify this court in setting aside the judgment. The judgment of the court is affirmed. Affirmed. McClellan, Mayfield, and Sayre, JJ., concur.