Alabama Great Southern Railroad v. Bailey

112 Ala. 167 | Ala. | 1895

McCLELLAN, J.

The counter abstract refers us to the transcript with reference to what occurred below as to security for costs of the action, and to the overruling of defendant’s motion to suppress the deposition of George W. Bearing. As to the former, a motion to require plaintiff to give security for the costs of the suit and an order denying such motion is copied in the transcript as a part of the record of the court below, but neither said motion nor the order made thereon is shown by the bill of exceptions, nor does it appear at all that any exception was reserved to the action of the court in overruling the motion. . Upon this state of the record in this court we cannot review that action. — Wiggins v. Witherington, 96 Ala. 535.

As to the refusal of the court to suppress Bearing’s deposition, the bill of exceptions shows that after both parties had announced ready for trial, the defendant demanded a struck jury, 'whereupon a jury was selected by striking alternately from a list of twenty-four jurors according to the statute, and when the jury thus selected was in the box, but before the cause had been put to the jury by the plaintiff, the defendant moved to suppress said deposition on the ground of a variance between the commission and the deposition in respect to the commissioner ; the commission having been issued to John J. Waddell, and the deposition having been taken and certified by John J. Waddill. Without deciding whether these names are idem sonans, it is clear, we think, that the motion to suppress came, after the trial had been entered upon in the meaning of the rule on that subject, and that for this, the motion was properly overruled. Morgan v. Wing, 58 Ala. 301.

The objection to the testimony of Pond as to having, seen rotten cross-ties along the curve where the train was derailed, and near the place of derailment take fire from passing trains was based specifically on the ground that the witness had not located these ties at the spot where the train left the track. This was a waiver of all other grounds of objection to this evidence, (McDaniel v. State, 97 Ala. 14) ; and the ground thus specified is not tenable. Richmond & Danville R. R. Co. v. Vance, 93 Ala. 144.

The testimony of J. B. Mathews that he “observed evidences of the railroad track having been tampered with,” was directly responsive to the fifth interrogatory propounded by defendant to this witness. No objection was interposed to this interrogatory, and therefore none should have been entertained to the answer. But the action of the court in sustaining an objection to the answer was* without injury to the defendant for this witness proceeded to state in detail the “evidences” that the railroad track had been tampered with, and his testimony, if believed by the jury, showed the fact sought to be established by him in this connection, that the track had been tampered with. — Richardson Bros. & Co. v. Stringfellow, 100 Ala. 416, 419.

The general charge was requested by the defendant chiefly on the theory, and the motion for a new trial was based mainly on the ground, that the evidence did not furnish the jury sufficient data for an intelligent assessment of damages. Upon this idea in part also charge 2, to find for the defendant under the first count of the complaint if the jury, believed the evidence, and charge 7, limiting a recovery to nominal damages, were requested by the defendant. This theory leaves no room for compensation to the plaintiff on account of pain and physical suffering. Had Bailey been killed, and his persona] representative prosecuted an action against the defendant, compensation for pain suffered by him could not be awarded because in such case the compensation is not for him but for his distributees who have endured no physical suffering. But that is not the case we have. Here compensation includes such, amount, not beyond that sued for, as the jury in their discretion may see proper to assess on account of plaintiff’s physical pain and suffering consequent upon the injury. Charge 8. requested by defendant is bad also on these considerations. — Richmond & Danville R. R. Co. v. Farmer, 97 Ala. 141; Richmond & Danville R. R. Co. v. Weems, 97 Ala. 270.

The complaint avers generally that the injury resulted from defects in the condition of the ways, works, machinery or plant connected with br used in the operation of a railroad by the defendant, and then under a videlicet it goes on to specify that the track or roadway over which the train was running at the time of the derailment was defective at or near -the point of the derailment, in that, to-wit, (another ■videlicet) the cross-ties were'rotten, the rails were insecurely fastened, the track was not sufficiently ballasted, the rails were old and worn. The form of this averment was notice to the defendant that plaintiff did not assume the burden of proving all these specified infirmities of the track or roadway, but only sufficient of them to support the general averment that there were defects in the condition of the track ; and plaintiff was under no duty to prove more than this. The general charge, and the general charge on the first count, requested by the defendant can, therefore, find no support in the absence of evidence that the track was insufficiently ballasted and that the rails were old and worn, there being evidence that the cross-ties were rotten and the rails were insecurely fastenedand charge 25, which would have required plaintiff to prove all these specifications, was properly refused. — Louisville & Nashville R. R. Co. v. Mothershed, 97 Ala. 261, 265.

There was evidence that the track was defective, that in consequence thereof the train on which the plaintiff was employed was derailed and wrecked, and that plaintiff was therebjr injured. The evidence as to the character of the defects afforded ground for an inference to be drawn bjr the jury that the defects arose from, or had not been discovered or remedied owing to the negligence of the defendant, or of some employe entrusted by the defendant with the duty of seeing that the track was in proper condition, but there was no direct proof that the defect had so arisen or was allowed to continue. The obvious tendency of charge 11 requested by the defendant was to obscure the capacity of this evidence to authorize this further necessary inference, and to mislead the jury to the conclusion that there was nothing in the case from which they could find that the defendant had been negligent in not discovering and remedying the defect. It was, therefore, well refused.

Charges 17 and 18 refused to defendant are not insisted on by counsel here.

The only other position taken by appellant’s counsel to which we need refer, is that the motion for a new trial should have been granted because the verdict was excessive. We think the argument in support of this position proceeds upon the erroneous notion already adverted to, that the plaintiff is entitled to damages only in respect of his loss of time and the diminution of his earning capacity consequent upon the injuries he complains of. When to these considerations is added recompense to him for the pain and suffering he endured and continues to endure, as it must be, we cannot affirm that the damages assessed by the jury are excessive.

The judgment of the city court must be affirmed.