176 So. 334 | Ala. | 1937
This is an action for personal injuries sustained by plaintiff in a collision between the Austin truck which he was driving and a Ford truck driven by defendant Claude Williams for defendant Armour Co., on a public highway extending from Birmingham eastwardly toward Gadsden, at a point east of Roebuck Club toward Huffman. Defendant's truck, which we *647 will call the Ford, was traveling westwardly toward Birmingham and the Austin in the opposite direction. It was not a head-on collision, but the front left side of the Austin and rear left side of the Ford collided in the highway.
The theory and evidence of plaintiff was that the Austin was traveling on the right side of the paved portion of the road, which had no center line marked, and that the Ford was traveling in the opposite direction meeting the Austin, but with its left wheels about two feet across what was supposed to be the center, at a point in the road making a gradual curve to the right toward Birmingham, or the west; that the Ford approached too close, plaintiff thinking he would turn any time, and finally did make a sharp turn to his right, but too late to prevent a collision, though plaintiff remained on his right to the time of the collision.
Defendant's evidence tends to show that both trucks were approaching each on his right side of the road, and, when the Austin suddenly turned to its left so close to the Ford, that though the Ford made a quick turn to its right, the collision could not have been avoided.
Much evidence was offered as to both aspects by eyewitnesses and photographs, and description of the conditions as they appeared after the collision.
Appellant moved for a new trial because the verdict for plaintiff was contrary to the great weight of the evidence. The court overruled that motion, and such ruling is here sought to be reviewed with great emphasis.
The objection does not relate to a specific feature of that excerpt. The argument here is directed to that part of it relating to the payment by defendant to doctors and spending money "like water" to beat plaintiff. But it was only after counsel had left that subject and was discussing something else that objection was made not to any certain remarks of counsel but only "to that line of argument," presumably referring to the line he was then pursuing. The particular line he was then pursuing was not objectionable nor is it urged here as so by appellant's counsel. We see no error in this ruling.
Appellant argues this in one aspect on the theory that it is special damages *648
and should be specially claimed. But the complaint does allege that plaintiff is liable to suffer in the future additional damages as a proximate result of said brain injury, and that his earning capacity was permanently impaired. Birmingham Electric Co. v. Cleveland,
When from the evidence an idea of such suffering has no substantial basis, but is purely speculative, no recovery is permissible on that account. It is thus stated in 17 Corpus Juris 1075, § 381: "When there is evidence in the case that there will be future effects from an injury, an instruction which justifies an inclusion on them in an award of damages is proper, as, for example, an instruction permitting a recovery for future pain and suffering. * * * Such an instruction must be so framed as not to permit a recovery for mere speculative consequences." And this is particularly true when the evidence supports a claim of permanent injury. South N. Ala. R. R. Co. v. McLendon,
So that, if there is evidence from which the jury could find that there was a "likelihood" that plaintiff would suffer in the future from his brain injury, the claim for such damages would not be speculative or abstract. Indeed, both the charges in question (52 and 53) seem to be predicated on the assumption that there was a likelihood that he would suffer in the future. When so, such recovery is not speculative but permissible.
Our later cases hold that, for impaired earning capacity, physical and mental pain, disfigurement, it is difficult to furnish a standard for measurement in money, and, without such standard, plaintiff is not confined to nominal damages. Birmingham Electric Co. v. Cleveland, supra; Walker County v. Davis, supra.
It will be noticed that the problem is the present evaluation in money of his condition, existing after the accident. A possibility of certain results would not show as much present compensable condition as a probability or other more certain consequence. But such possibility would shed some light on the question of more or less value as explained by the expert. Not that plaintiff can recover for such possible consequences, and the charges were not so framed. But the evidence is admissible to shed light on the value of a condition then existing. The jury will take that along with the other evidence in justly appraising that condition.
Many of the answers are not objectionable on the contention of appellant, but give more detail of probability than the question quoted in brief from the record would suggest. They were a part of a cross-examination.
We do not think the charges refused — assignments 17 and 18 — on the evidence given in respect to the matters we have discussed, show reversible error.
There was in this case a controversy as to what the operator of the Ford truck did, not what he should have done to stop his truck or to avoid the collision. All agree as to what his duty was, so far as anything to the contrary appears, but not as to whether he did it. It was therefore unnecessary to make proof of what his duty was. The law fixes his duty in large measure. The general rule is that an expert can testify what is the most effective way of stopping a car. But, when his way of doing so is not disputed as being the most effective, but the dispute is as to whether he did it, no prejudice results from a refusal to allow him to state what is the most effective way. However, as we have said, he testified that he did everything in his power to avoid the collision. That answers the questions to which we have referred.
The rule is well understood to be that ordinarily one cannot prove by a witness on direct examination what were his motive, purpose, fear, or other mental operations. But on cross-examination a witness may be asked as to his reasons for certain acts of his, and his motives and intention in respect to his conduct. 70 Corpus Juris 636, 637; General Accident, Fire Life Assur. Corp. v. Jordan,
The questions referred to in those assignments and their answers were permissible under this rule.
Further illustrations of the principle are shown in the following authorities: Louisville *650 N. R. R. Co. v. Elliott,
The questions referred to were asked on direct examination, not to test the knowledge, experience, or accuracy of the witness, nor to obtain any scientific information, but as testimony thought to be relevant to the main issue. Distinction naturally exists between that situation and one in which such questions are propounded on cross-examination of any expert witness, material to a proper interpretation and weight to be accorded the evidence of that witness given on his direct examination. For the reasons we have assigned, not considering others, we do not think there was reversible error in declining to permit the questions to which we have here referred.
Appellants' counsel have argued other assignments of error, but we think they are without merit and do not need discussion. We have treated those which seem to merit discussion.
Finding no reversible error among the assignments which appellants have argued, the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.