Birmingham Railway, Light & Power Co. v. Fisher

McCLELLAN, J. Action for damages for personal injuries by passenger against the carrier. The first and third counts, charging simple negligence to the injury of plaintiff, were not subject to demurrer. —L. & N. R. R. Co. v. Perkins, 152 Ala. 133, 44 South. 602. In instructions to the jury it is essential that the hypotheses to a recovery include the condition that the negligence or wrong charged in the complaint afforded the proximate cause of the injury complained of, — B. R. L. & P. Co. v. Moore, 163 Ala. 44, 50 South. 115; B. R. L. & P. Co., v. Jones, 146 Ala. 277, 41 South. 146. In pleading a count is sufficient in that respect if the facts averred lead, with requisite certainty, to the conclusion that the injury suffered proximately resulted from the negligence charged. The second count was not subject to the demurrer. The court did not err in overruling the objection to the hypothetical question put to the expert witness, Dr. Tally. The grounds of objection to the question were that it did not sufficiently hypothesize the facts in evidence, that it invaded the jury’s province, and that it sought a conclusion. It was the examiner’s right to seek the expert’s opinion upon the state of the evidence tending to support his th'eory of the subject of the inquiry for expert opinion. — L. & N. R. R. Co. v. Banks, 132 Ala. 471, 31 South. 573; B. R. L. & P. Co. v. Ellard, 135 Ala. 433, 33 South. 276. [628] 1 There was testimony upon which, if credited, the jury might have rested a finding justifying the imposition of punitive damages. It appeared from some of the evidence that the plaintiff was injured as the result of the closing of two entrance gates, blocking, when closed, thé passage from the platform, over the step, to the ground. These gates were operated by means of a lever. To open them the lever was pulled; and to close them the lever was pushed back. The mechanism was designed to be Operated by the motorman from his position on the car. It did not appear from] the testimony that the closing {if so) of the gates on this occasion was otherwise caused than by the means and by the servant indicated. There was testimony tending to show that the motorman was in his place at the time: The motorman testified, on the cross, that from his place he “could see a passenger in the act of getting off” the car; that the cars “are all arranged so the motorman can look back through the car and then look into the mirror and see what is going on along the gate side of the car, and at the place for passengers to get off.” - If, as some of the testimony tended to show, the gates were closed while plaintiff was in the act of alighting from the step flush with the outer edge of which the lower lines of the. gates were constructed, it was open to the jury' to find from' the testimony that the motortoan'operated the lever, and that he could have seen and did see the plaintiff then so situated with reference to the gates as that, if they were then closed, the plaintiff would'be-struck by one of both of them. And, if these conclusion's were entertained by' the jury, it was then further open to them to find that’the act of closing the gates, under- those circumstances, was so colored as to bring the event within the aggravated wrong charged in count 2 of the complaint. Upon the indicated theory of [629] concurrent fact and knowledge, the ruling stated conforms with those made in B. R. L. & P. Co. v. Jung, 161 Ala. 461, 49 South. 434; Sou. Ry. Co. v. Bush. 122. Ala. 471, 26 South. 168, and R. & D. R. R. Co. v. Vance, 93 Ala. 144, 9 South. 574, 30 Am. St. Rep. 41, among others. Accordingly, the affirmative charge, upon count 2, and charge 6, instructing against the awarding of punitive damages, were properly refused to defendant. No plea of'contributory negligence appears in the transcript. For that reason charge 4 was well refused to defendant. Furthermore, that defense, if interposed, would not have sufficed to defeat a recovery under some of the evidence on the count (2) charging wanton or intentional wrong. The evidence required the submission of the determination of the issues of fact under the pleading to the jury. Hence the several affirmative charges requested by the defendant were correctly refused. No error appearing, the judgment is affirmed. Affirmed. Simpson, Anderson, and Mayfield, JJ., concur.