Alabama City G. & A. Ry. Co. v. Bessiere
72 So. 325
Ala.
1916
Check Treatment
McCLELLAN, J.

Previous appeals of this litigation will be found reported in 179 Ala. 317, 61 South. 82, and in 190 Ala. 59, 66 South. 805. On the last trial the only issues, tendered by the complaint, submitted to the jury were those raised, by the averments of count 12 as amended. It is correctly reproduced on page 60 of 190 Ala., 66 South. 805, except the words “at a great rate of speed and in darkness” were eliminated by amendment. It is now unnecessary to repeat the statement of the controversy sufficiently shown in the previous reports of the appeals. It will be sufficient to say at this time that the action is for damages for the death of plaintiff’s intestate, amended count 12 attributing his wrongful death to the simple negligence of the motorman of a street car in approaching a flag station, on this occasion, without having his car under proper control.

The chief insistence for error is the refusal to the defendant of special instructions forbidding a recovery by plaintiff. In the last appeal the conclusion was expressed that the case made by the evidence then recited in the bill of exceptions required the submission of the issues of fact, under the twelfth count, to the jury. Counsel for appellant have submitted an exhaustive brief and argument in support of their contention for error in the refusal of affirmative instructions, based upon the- view that there was no evidence, or reasonable inference from evidence, supporting, even prima facie, material averments of count 12. The evidence bearing on these issues and the earnest argument for appellant have been carefully considered; and no sufficient reason has been made to appear or has been disclosed to alter the conclusion heretofore announced.

(1, 2) There was evidence tending to show the presence of Henry Bessiere at the flag station for the purpose of taking pas*8sage to Gadsden on the defendant’s .car. There was evidence tending to show that the means of his death, at the station place, was an inbound car of which Motorman Duncan was the operative. There was evidence tending to show that the car, on the occasion in question, approáched the station place at a high speed, not under proper control, a speed indicative of the absence of the care due to be observed in the circumstances,- on a dark, foggy night when the headlight on the car did not fully perform its service of giving warning of the car’s approach and of lighting the way ahead. The defendant had provided this place (called Brown’s Crossing) for the reception and discharge of passengers, the cars to stop upon signal for the reception of passengers. Obviously these circumstances created a positive duty on the carrier to approach this flag station with the car under such control as reasonable prudence and care would suggest to avoid danger of injury to persons at the flag station for the purpose of availing-of the service of the carrier. What would be the observance of that degree of prudence and care would, of course, depend upon the circumstances and conditions affecting or relating to the duty assumed by and resting upon the carrier toward those thus invited to be at the flag station. Whether the requisite prudence- and care was in this instance, as must be the case in most instances, observed by the carrier’s servants operating one of its cars was a question for the jury to determine. So the trial court ruled. Its ruling in this respect was free from error.

(3, 4) While the witness Arthur Jones gave utterance to statements immediately calculated to entirely discredit his recollection of the matters about which he testified,, yet there were other assertions by the witness that affirmed the possession by him of independent recollection of the matters about which he testified when his recollection had been refreshed by reference to the stenographic report of his testimony on a former trial that took place earlier after the event in question. It cannot be held that the trial court ■ erred in declining to exclude this .witness’ testimony. It is settled here that, the determination of the quali.fication vel non of a person to give an expert opinion on a definite subject is a preliminary matter ; that, its decision is addressed to the sound-discretion of the trial court under the evidence bearing upon that preliminary inquiry. — White v. State, 133 Ala. 122, 32 South. 139; L. & N. R. R. Co. v. Sandlin, 125 Ala. 585, 28 South. 40; Ins. Co. v. Stephens, 51 Ala. 123; Ala. C. & I. Co. v. Heald, *9168 Ala. 626, 643, 644, 53 South. 162; L. & N. R. R. Co. v. Elliott, 166 Ala. 419, 52 South. 28; Jones on Ev., § 369.

(5, 6) Under the rule long prevailing here, the finding of the court upon the facts presented on that preliminary inquiry will not be held for error unless the ruling is plainly erroneous. While an hypothetical question, propounded on the examination in chief to an expert witness, is objectionable if it contains elements of fact not shown by the evidence, yet such a question is not objectionable because it omits to hypothesize every fact shown by the evidence, for an examiner of an expert witness may lay as the basis for the opinion invited only those facts in evidence which conform to the theory the examiner would establish, though, of course, such questions should incorporate sufficient of the facts in evidence to fairly justify the formation of an expert opinion on a material issue in the case; the frame and substance of hypothetical questions to expert witnesses being a matter largely committed to the discretion of the trial court. — B. R. & E. Co. v. Butler, 135 Ala. 388, 395, 33 South. 33; Morrissett v. Wood, 123 Ala. 384, 26 South. 307, 82 Am. St. Rep. 127; Parrish’s Case, 139 Ala. 16, 43, 36 South. 1012; Long. Dist. Co. v. Schmidt, 157 Ala. 391, 47 South. 731; B. R. L. & P. Co. v. Saxon, 179 Ala. 136, 59 South. 584; Jones on Ev., §§ 370, 371; 17 Cyc. pp. 244, 250.

(7) In the brief and argument for appellant assignments of error numbered from 5 to 12, inclusive, are treated together. They all relate to the preliminary qualification and the examination of an expert witness. The consideration of these subjects of the assignments mentioned, in the light of the applicable rules before restated, leads to. the conclusion that none of them are well taken. The trial court cannot be held to have misused the judgment and discretion with which such courts are invested in the premises. The case of La Londe v. Traction Co., 145 Mich. 77, 108 N. W. 365, does not at all militate against the conclusion we have stated. There the court declined to hold for error the action of the trial court in declining to allow a question that the trial court had held was incomplete, that omitted necessary elements to bring the matter of the opinion sought within the range of the issues made. If the learned trial court had declined to allow some of the questions noted in these assignments, doubtless this court would have found nothing in that to manifest a misuse of the judgment and discretion reposed in him in such matters.

*10(8) Charge C, requested for the defendant, was well refused. It was outside of the issues made by the averments of count 12. The negligence therein declared on did not at all depend upon whether the motorman saw Henry Bessiere or not.

There is no merit in the errors assigned and urged here. The judgment is affirmed.

Affirmed.

Mayfield, Somerville, Gardner, and Thomas, JJ,. concur. Anderson, C. J., and Sayre, J., dissent.