Birmingham Railway, Light & Power Co. v. Wiggins

54 So. 189 | Ala. | 1911

MAYFIELD, J.

Appellee, as a passenger, sued appellant, as a common carrier, to recover damages for personal injuries suffered by her in consequence of being thrown from one of appellant’s cars which she was attempting to board; such injuries being ascribed to-the alleged negligence of the servants of appellant in-charge of the car. The trial resulted in verdict and judgment for the plaintiff for $400. From such judgment this appeal is prosecuted.

The first four assignments of error go to the rulings of the trial court in sustaining objections to questions propounded by defendant to its own witnesses on the direct examination. There was no revisable error in any of these rulings. The court, could have allowed or refused any of them without committing a reversible-error. The questions were within the sound discretion of tbe trial court because either leading or argumentative in their nature; some of them being highly so. The effect of an examination such as was indicated by these questions was either to suggest to the witness the answer desired; or, the facts being stated, to have the witness answer questions so as to argue the facts to the jury. It is a rule of evidence that questions on the direct examination of witnesses which are suggestive,, leading, or argumentative, should not be allowed. The reason of the rule, Mr. Best says, is (1),: That the witness has a bias in favor of the party introducing him; (2) that the party calling the witness has the advantage of knowing in advance what the witness will prove, and, if allowed to lead the witness or to suggest answers, he would thus be allowed to extract only so much of the testimony as would be favorable to his side and so prevent the witness from testifying, in accordance with his oath, to “the truth and the whole truth”; and, further, that such a mode of examination may suggest, and the witness (unwittingly or by connivance) may assent to or repeat, a form of words which does not represent the witness’ real and unaided belief. Whether particular questions violate this rule is usually and properly said to be a matter Avithin the sound discretion of the trial court and not revisable on appeal.—Bivins v. Pope, 7 Ala. 374; Sayre v. Durwood, 35 Ala. 247; Gassenheimer v. State, 52 Ala. 317.

There Avas no error in the giving of charge 1, as requested by plaintiff. As applied to the issues and the evidence, it Avas both correct and proper. If it could be said to be misleading in any of its tendencies, as claimed by appellant, it should have been cured of such tendencies by counter charges by appellant — which Avas not attempted or requested.

The court committed no error in refusing charge 4, requested by appellant. While the identical charge, and charges similar in legal effect, have been repeatedly held proper by this court, and their refusal in many cases held to be reversible error (Cotton Oil Co. v. Walker, 164 Ala. 33, 51 South. 175; Hale v. State, 122 Ala. 88, 26 South. 236; Orr’s Case, 117 Ala. 69, 23 South. 696; Snyder v. State, 145 Ala. 36, 40 South. 978), yet the charge was properly refused in this instance because abstract. There was no attempt to impeach this witness by the. contradictory statements made out of court, nor to show that the witness had testified differently on a former trial; nor do we find any contradictory statements, of this witness, on the trial, as to material matters, sufficiently conflicting to warrant the giving of this charge.

Affirmed.

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