Birmingham R. L. & P. Co. v. Pritchett

49 So. 782 | Ala. | 1909

MAYFIELD, J.

But three errors are assigned in this record; the first being the refusal of the trial court to give the general affirmative charge for the defendant upon the second count of the complaint, and the second and third being based upon the trial court’s refusal to overrule defendant’s objection to questions propounded to plaintiff by her counsel in the trial below.

This was an action by a passenger against a common carrier to recover damages for personal injuries, the result of her falling from the carrier’s car while attempting to alight therefrom. .The damages sought are predicated upon the negligence of the carrier’s servant or agent in charge or control of the car, in that he so negligently managed, controlled, and operated said car that the same suddenly started or jerked, and as a proximate result thereof that the plaintiff was thrown violent-ly to the ground and suffered injuries, etc. The trial was had on two counts, one alleging wanton negligence or willful injury, and the other simple negligence. The court gave the general affirmative charge for the defendant npon the count claiming for wanton negligence or willful injury, and properly declined to give the affirmative charge for the defendant as to the second count, which is based upon simple negligence on the part of the agents of the carrier.

We have examined carefully the evidence in this case, and have reached the conclusion that the trial court was correct in submitting the question of negligence to the jury. While the evidence was in conflict as to whether or not the defendant’s agents or servants in control of the car were guilty of any actionable negligence, some of the evidence certainly tended to show such negligence, and it was clearly the province of the jury to infer such negligence from certain facts, which a part, at least, of the evidence tended to establish.

There was likewise no error in the trial court’s overruling defendant’s objection to the questions propounded to plaintiff by her counsel. There was certainly some evidence of injury suffered by the plaintiff; and the character of such injury — whether temporary or permanent — was a legitimate subject for the consideration and determination of the jury. These questions tended to elicit answers relative to such issue. While they may be leading, it does not appear that there was any abuse of the discretion of the trial court in allOAving such questions either to be propounded or to be answered.

No other error being assigned or insisted upon, the judgment below must be affirmed.

Affirmed.

Dowdell, C. J., and Anderson and McClellan, JJ., concur.