119 Ala. 555 | Ala. | 1898
The witness, L. F. Burgess, was not shown to know anything about the time or distance within which a train could be stopped under any circumstances or conditions. He should not, therefore, have been allowed to .give his opinion that defendant’s train could have been stopped on the occasion of the injury within a distance of two hundred yards. The error of receiving' this testimony was, however, cured by its subsequent exclusion. And the court’s right and power to thus correct itself cannot be defeated of exercise by the fact that the defendant was forced, in view of this testimony being improperly before the jury at one time, to introduce evidence which put it at a disadvantage after this was withdrawn. The defendant, it may be, was entitled to protection against such a result through a request to be allowed to withdraw the evidence it had been thus forced to offer, but the court was not bound to persist in the error it had committed.
The case made by one tendency of the evidence is this:
In the case of Ala. Gt. So. R. R. Co. v. Burgess, Admr. etc., 22 So Rep. 913, a charge, there numbered 7, much like charge No. 5 given for the plaintiff in this case, was criticised and condemned. It was as follows: “That all that is meant in this case by ‘wanton, willful or intentional negligence’ is the conscious failure, on the part of the defendant, to use reasonable care, under the circumstances, to avoid the injury after discoArering the danger of the child, if the jury find from the eAddence there Avas such failure and the injury resulted there
It is sufficient to say in condemnation of charge 7, refused to defendant, that it exacts too high a degree of proof. It was not on the plaintiff to satisfy the jury absolutely of wantonness, willfulness or intentional wrong on the part of defendant’s employes, but only to reasonably satisfy them. — Torrey v. Burney, 113 Ala. 496.
Where, as in this case, the recovery must be rested upon the wanton or willful misconduct of the defendant’s employes, and the damages may be punitive as well as compensatory in character, and where, as here, compensatory damages are claimed for physical and mental pain and suffering, the court does not err in instructing the jury that if the plaintiff is entitled to recover at all they may award him such damages as they see proper to assess not in excess of the amount claimed in the complaint. Such a charge in truth and in fact refers the assessment to the sound discretion of the jury,
Reversed and remanded.