93 Ala. 514 | Ala. | 1890
— It was determined on the former appeal in this cause that the defendant was entitled to have a physical examination of the plaintiff’s person made by disinterested and competent experts to be appointed by the cofirt. The selection of such experts is a matter entirely within the discretion of the trial judge. Neither party has any right, by suggestion, motion, or otherwise, to control his discretion in any degree. The court, in making the ¡ order for a physical examination, and in designating the experts to execute it, is conserving the interest of neither the defendant nor the plaintiff, but the ends of justice; and when a competent and impartial commission is named, it is a matter of no consequence whatever that the parties, or either of them, preferred and demanded the appointment of other persons. There is no suggestion here that the physicians selected were not in all respects qualified to discharge the duty imposed upon them by the order of the court; and the court’s declination to appoint Dr. Batty, at the instance of the defendant, is not a matter which this court will review. Moreover, were this action revisable, we are by no means prepared to say that the fact that Dr. Batty had already formed and expressed an opinion relative to the existence of the injuries laid in the complaint was not ample justification • for the court’s refusal to appoint him on the commission.
This high degree of care is imposed by. the law as being reasonable, in view of the relation existing between the carrier and his passenger; and it is in this sense that the term'“reasonable care” must be taken to haye been employed in Smith v. Ga. Pac. Railway Co., 88 Ala. 540.
Had the burden, beyond proof of derailment and consequent injury to a passenger, been on plaintiff to show negligence on the part of the defendant, she would have been entitled to recover on this count on proof that the de ailment was caused by the defective condition of the track, and without any evidence of negligence in respect of the running of the train. — L. & N. R. R. Co. v. Jones, 83 Ala. 376. The other assumption involved in appellant’s position in reference to this charge (No. 4) is equally without support. The fact that the train ran three hundred yards with some of the cars off the rails and on the ties, and when presumably every effort was being made to stop it, is itself some evidence that a high rate of speed, amounting to negligence, especially when con
The evidence in this record is substantially the same on this subject as that adduced on the former trial. The conclusion then reached, we now re-affirm. What was then said, however, is open to criticism in that it authorized the conclusion that recklessness or wantonness could be predicated of the mere omission of a duty to know the condition of the track which the evidence tended to establish. That this was an inaccurate statement of the doctrine was attempted to be demonstrated! by the present writer in the subsequent case of Ga. Pac. Railway Co. v. Lee, 92 Ala. 263; 9 So. Rep. 230; and the inaccuracy was specifically pointed out in the yet later case of R. & D. R. R. Co. v. Vance, ante, p. 144. That statement, however, was an abstraction. No result depended upon it
A number of other charges were requested by the defendant and refused. They have all received. careful consideration. We shall not, however, further extend this opinion by a discussion of them in detail. Each of them will be found to be either unsound in the abstract, or argumentative, or misleading, or invasive of the province of the jury, or to assume the existence of evidence not found, or the non-existence of evidence which.is found in this record; and many of them are open to more than one of these objections. Similarly, we pretermit discussion of three or four rulings on the evidence, because the objections to them are obviously lacking in merit. Every point made in the case has been considered — a great number of them, indeed, were passed on when the case was here before — and all plausible exceptions have been written upon. We find no error in any ruling of the trial court, and the judgment is affirmed.