Southern Ry. Co. v. Stollenwerck

ANDERSON, J. This is the third appeal in this case, it being reported first as Southern R. R. Co. v. Bryan, Adm'r, 125 Ala. 310, 28 South. 445, and the second time as Southern R. R. Co. v. Bonner, Adm’r, 141 Ala. 517, 37 South. 702. The only counts considered by the jury, upon the trial from which the present appeal is had, are 1 and 4, as all others were eliminated by pleading or special instructions. It was held on the second appeal (141 Ala. 517, 37 South. 702) that there was evidence sufficient to submit both counts to the jury, and that the general charge should not have been given as to either count, because of a failure of proof, or as .to the first count because of proof beyond dispute of the plea of contributory negligence thereto. After a careful consideration of the argument of appellant’s counsel and the evidence, we are of the opinion that the former holding is sound, and find no such change of the facts upon the last trial as would justify the general charge for the defendant as to either count, either [561] upon failure of proof as to the allegations or because of undisputed proof of contributory negligence. It is insisted, among other things, by appellant’s •counsel, that defendant was entitled to the general charge as to the first count because of a variance; that the count avers that intestate’s death was caused by the negligence of defendant’s employes, who were operating defendant’s said train, while the proof fails to show negligence on the part of the conductor or all of the employes who were operating said train. We do not think that the complaint charges joint negligence, and that proof of negligence of any one of them would he a compliance .with the averment. The cases cited by counsel are not in point as to fact or principle. Assignements 6, 7, and 12, relating to unnumbered refused charges, which we number 6, 7, and 12 for convenience, are without merit, and comment is useless. There was no error in refusing charges 8 and 9, requested by the defendant. They charged that the intestate was guilty of contributory negligence, and under the evidence it was a question for the jury. Charge 11, requested by the defendant, was properly refused. If not otherwise bad, it instructed a finding for the defendant, as to the entire complaint, upon the proof of contributory negligence, and therefore ignores the wanton count of the complaint. Charge 13, refused the defendant was properly refused. If not otherwise bad, it instructs a finding for the defendant if there was no wantonness, and ignores the simple negligence count. Charge 14 is subject to the same criticism. We do not think that the trial court erred in permitting counsel to ask the witness Lawrence the question, “State whether you listened carefully or not, when you stopped at the crossing;” and, “State whether or not [562] you looked carefully.” They did not call for suck an opinion or conclusion as to render them improper. Nor do they have to he justified under the theory of a shorthand rendering of facts. They call for the mere hald statement of a fact, and to which any Avitness with the God-given senses can testify without having to resort to an opinion or conclusion. Some of the courts have gone very far in holding Avitnesses doAvn to the narration of details, and have in many cases discountenanced the (statement of a result from concurrent or collective facts, to the extent of delaying and complicating, if not defeating, justice. The rule, however, has gone its limit in this state, and we are not disposed to extend it to a condemnation of the present questions, which we think were legitimate and proper. In laying a predicate for proof of lost documents, it is natural and proper to ask if diligent and careful search wa¡s made, and Ave think any witness should be alloAved to testify that he looked carefully, or listened carefully or attentively. The case of L. & N. R. R. Co. v. Bouldin, 110 Ala. 200, 20 South. 325, comes nearer being an authority against these questions than any we find, unless it may be the case of Springfield v. Coe, 166 Ill. 22, 46 N. E. 709, and which said last case is severely criticised by Mr. Wigmore. — Note to section 1951, p. 2593, vol. 3, Wigmore on Evidence. This Bouldin- Case, supra, may be differentiated, however, from the case at bar upon the idea that the question in that case called for the opinion of the witness as to Avhat constituted ordinary care during the day. It did not ask if the witnesses were looking carefully at a given time or for a particular object, but whether or not they kept an ordinary loookout that day. The trial court did not err in refusing the motion for a new trial. [563] The judgment of the circuit court is affirmed. Affirmed. Dowdell, O. J., and Sayre and Evans, JJ.y concur.