136 Ala. 279 | Ala. | 1902
Lead Opinion
The testimony of the plaintiff that he “had to get on the electric car track or right at it in order to cross the A. Gf. S. track that that switch engine was on,” was open to the objection interposed to it by the defendant: It was in form and substance a mere conclusion of the witness upon facts which were capable of being fully laid before the jury. The court’s action in allowing it to be adduced was erroneous.— Bullock v. Wilson, 5 Port, 338; Gibson, v. Hatchett, 24 Ala. 201; Jones v. Hatchett, 14 Ala. 743; Otis v. Thorn, 23 Ala. 469; Tanner’s Executor v. Louisville & Nashville
The testimony of the plaintiff that he had not become aware that the car was moving on or towards him before it struck him was not the statement of a conclusion but of a concrete fact. It was not subject to the objection made to it, if to any.
The testimony of Ayers that the motorman was “doing all he could to stop” was illegal. It was not responsive to the question, and hence plaintiff had the light- to have it excluded though the question was not objected to. And even had it been responsive to the question the court committed, no error in excluding it, though for want of such objection the plaintiff would not have been entitled to have the answer excluded.
The foregoing are the only rulings on evidence assigned as error and discussed in the brief for appellant. There were other exceptions to rulings upon the competency of testimony, but, of course, we have not considered them.
The rulings' of the court in refusing charges 2, 3, 4, 5, 6, 7, 10, 12, 13, 14, 16, 17, 18, 19 and 23 requested by defendant are assigned as erroneous,' and these assignments are insisted upon in appellant’s brief. On the issues of fact presented, by the pleadings and upon which there was evidence pro and con, we are of opinion that the trial court committed no error in any of these rulings. Those issues were, first, whether the motorman was guilty of negligence in respect of efforts to avert the disaster after he became aware of the peril of the plaintiff; second, whether the motorman consciously failed after he became aware of plaintiff’s peril to use all menus in his power to avoid running over him ; and, third, whether the motorman though not aware of plaintiff’s peril in time to have avoided injuring him was guilty of reckless and wanton or willful misconduct in
Reversed and remanded.
Rehearing
On Ay plication for Rehearing.
On application for rehearing the court has reached the conclusion that the error committeed by the trial court in alloAving the plaintiff to answer the question: “Tell the jury Avhether or not you had to get on the electric car track or right at it in order to cross the A. (1. S. track that that switch engine Avas on?” was without injury to the defendant, since that evidence merely tended to show that the plaintiff was not guilty of negligence, and the case Avas tried upon the theory that he was guilty of negligence, and charges were given for the defendant. declaring that he was guilty of negligence. Upon this consideration the judgment of reversal is set aside and the judgment of the city court Avill be affirmed.
