42 So. 1024 | Ala. | 1906
Lead Opinion
— This action was brought by Ella P. Moore against the Birmingham Railway, Light & Power Company to recover damages consequent upon personal injuries alleged to have been suffered by the plaintiff, while a passenger on one of defendant’s street cars, through the negligent conduct of the defendant while operating said street car. The complaint consists of five counts. Each of them showed that the defendant was a common earner of passengers, and the plaintiff was a passenger on one of defendant’s cars, when she received the injury; and by this “was shown the duty of the defendant to conserve her safety. The duty having been thus shown, the averment of a failure to perform it — of the negligence of the defendant, whereby the injury was caused to the plaintiff — though very general, was sufficient, under an unbroken line of decisions by this court. —Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 South. 349; L. & N. R. R. Co. v. Anchors, 114 Ala. 492, 22 South. 279, 62 Am. St. Rep. 116; Western Ry. of Ala. v. Walker, 113 Ala. 267, 22 South. 182; L. & N. R. R. Co. v. Markee, 103 Ala. 160, 15 South. 511, 49 Am. St. Rep. 21; S. & N. R. R. Co. v. Thompson, 62 Ala. 494; L. & N. R. R. Co. v. Jones, 83 Ala. 376, 3 South. 902; Central of Georgia R. R. Co. v. Martin, 138 Ala. 531, 36 South. 426; Southern Railway Co. v. Burgess, 143 Ala. 364, 42 South. 35.
There was one ground of demurrer to one or more counts of the complaint to the effect that the place where the injury occurred was not alleged. In this respect the first and third counts of the complaint show that “the defendant was engaged in operating by electric force a street railway as a common carrier of passengers in and upon the streets of Birmingham, in the state of Alabama, and the defendant did then and there so negligently conduct said business,” etc. We judicially know that the streets of Birmingham, and all of them, are in Jefferson county, and the averment was sufficient as to place.—Chitty on Pleading (1855) p. 394 ;Jean v. Sandiford, 39 Ala. 317; Armstrong v. Montgomery St.
When the cause was called for trial in the city court, it was made knoSvn to the court that the original pleadings in the cause were lost, mislaid, or destroyed, and had not been substituted. On this ground the defendant moved the court to continue the cause. The motion was resisted by the plaintiff, wherenppn (as the bill of exceptions states) the court ordered that the record of the original papers might be used upon the trial of- the cause in all respects as the original. In making this order it cannot be doubted that the court acted Avithin the letter and the spirit of the statute. Therefore its action is unassailable. — Code 1896, §§ 2644, 2645.
The defendant then assigned as another ground for its motion for a continuance that it had filed interrogatories to the plaintiff and the answers thereto Avere lost, mislaid, or destroyed with the original papers, and that said answers A\rere not matter of record, and defendant could not avail itself of these answers of plaintiff to said interrogatories if it went to trial of the case at the time. In this connection the bill of exceptions recites: “Whereupon the plaintiff submitted a certified copy of plaintiff’s ansAyers to defendant’s interrogatories, verified by the oath of the plaintiff and the clerk of this court ,and asked that the same be filed as a substitute, on the ground that the original had been lost, mislaid, or destroyed. Thereupon the defendant interposed an objection to the substitution of said papers on the ground that notice had not been given by the plaintiff of such contemplated action as required by laAV. The court overruled said objection, and to the ruling of the court thereon the defendant then and there duly excepted. It is manifest that reversible error cannot be predicated on the action of the court Avith respect to this matter, for the reason that there is nothing in the record to show that answers to the interrogatories were substituted.
The bill of exceptions, proceeding, states: “Whereupon the defendant objected to going to trial' on the ground that one day’s notice had not been given by the
The case was tried on the plea of the general issue; the trial resulting in a verdict and judgment for the plaintiff in the sum of $3,725. It cannot from the evidence be successfully disputed that the plaintiff, on or about the 11th day of June, 1908, was a passenger on one of defendant’s street cars that was being at the time operated by the defendant, through its servants, on the streets of the city of Birmingham, and that the car was allowed to run into a switch, and on the side track leading from the switch, until it collided with a car that was standing on the side track. The fact that the collision was the result of negligence on the part of the defendant’s servant or servants seems, so far as the record shows, not to have been controverted. There was no evidence explanatory of the collision. In the absence of such evidence the presumption of negligence arose.—G. P. Ry. Co. v. Love, 91 Ala. 432, 8 South. 714, 24 Am. St. Rep. 927; Birmingham Ry., Light & Power Co. v. Bynum, 139 Ala. 389, 36 South. 736.
The extent of the injury suffered by the plaintiff on account of the collision was a subject of serious controversy. The plaintiff contended that in the collision, among other injuries, she received a blow on the lower part of the right side of the abdomen which superin-duced “traumatic appendicitis.” The evidence without conflict showed that she was a healthy woman up to the time of the collision, had never detected or felt any symptoms of- appendicitis up to that time, nor had she received any injury before that time. It further showed that she had pain in the region of the appendix from the-time she received the blow in her side up to the 22d day of July, 1903, at which time she was operated on in St. Vincent’s Hospital in the city of Birmingham; the operation demonstrating that she had appendicitis. The precise point of controversy was whether the appendicitis,.
Sundry exceptions were reserved to the rulings of the court on the admissibility of evidence, some of which rulings have been assigned as error. It was averred in the complaint that the plaintiff was put to great expense and inconvenience in providing necessary medical attention in her efforts to heal and cure her said wounds and injuries. Plaintiff, after testifying that Drs. Guinn Meadows, and Schoolar. rendered her medical attention on account of her injuries, and that they per-, formed the operation on her for appendicitis, was asked by her counsel this question ¡“State what was the amount you paid or are to pay these doctors.” The question was objected to on the- grounds that it called for immaterial, irrelevant, incompetent, and illegal evidence. It was necessary for the plaintiff to offer evidence to show that she incurred liability for medical bills, and the question called for evidence which showed or tended to show such liability, and was directly within the averments of the complaint. If it he conceded that only reasonable bills for physicians’ services were recoverable, this did not render the evidence'sought objectionable; and, if no evidence was offered to show reasonableness of such service, the defendant should have moved the court to exclude the evidence, or should have asked a charge excluding such services as an element of damages.—Duke v. Mo. Pac. Co., 99 Mo. 347, 12 S. W. 636; Murray v. Mo. Pac. Co., 101 Mo. 240, 13 S. W. 817, 20 Am. St. Rep. 601; A. G. S. R. R. Co. v. Siniard, 123 Ala. 557, 26
The seventh assignment of error is not insisted on.
There was evidence tending to show the facts substantially as they were embraced in the hypothetical questions propounded to Dr A. E. Meadows by the plaintiff on the examination in chief. He was shown to be a practicing physician of 20 years5 experience—an expert. The matter upon which he was asked to express an opinion was pertinent, and the court properly allowed him to answer the hypothetical question. — Parish’s Case, 139 Ala., on page 43, 36 South. 1012. The ruling of the court on the questions is presented for review by the eighth and ninth assignment of error.
It is argued in support of the tenth assignment of error that there was no evidence tending to show inflammation in the region of the' appendix. In this we think counsel is mistaken. There is no merit in this assignment.
Dr.-Meadows was asked by the plaintiff this question on redirect examination: “Doctor, if a case of appendicitis should develop, would hot and cold applications to the parts have a tendency to postpone and allay the irritation?” It is conceded by the appellant that it might have been material to show that hot and cold applications applied to the parts would have a tendency to postpone the necessity for operation. It seems that the concession shows that there is no merit in' the assignment of error which presents the question for review. It was proper to show that all and any means known to medical skill were resorted to, in the proper treatment of the plaintiff, to relieve her without subjecting her to the danger of an operation. We cannot say that remedies which would allay irritation would not postpone the necessity for operating for appendicitis. The evidence of Dr. Guin showed that hot and cold applications were used with the plaintiff to allay the inflammation, and when they were used the plaintiff’s condition improved. There is no merit in the objection of the defendant to the question.
There was evidence tending to show that the blow the plaintiff testified she received on her side at the
The thirteenth and thirtieth assignments of error relate to the same subject, and have been treated together in appellant’s brief. The thirteenth assignment presents for review the ruling of the court overruling defendant’s objection to the introduction in evidence by the plaintiff of a part of a book entitled “Practice of Surgery,” by Wharton & Curtis, while the thirtieth assignment presents a like question with reference to the introduction of a book entitled “Modern Surgery,” by De Costa. Each of the books was shown to be a standard medical work, and the parts offered in evidence pertain to the pathology of appendicitis, Particularly did they relate to the question, which was much in dispute on the trial of this case, viz., whether or not appendicitis could he caused by a blow or bruise — by traumatism. Under the rule established by this court in 1857 in the case of Stoudenmeier v. Williamson, 29 Ala. 558, the objections to the introduction of the books were properly overruled.—Merkle’s Case, 37 Ala. 139; Oakley’s Case, 135 Ala. 29, 33 South. 693. With respect to the thirtieth assignment Ave may further remark that the objection to the hook as evidence Avas undefined — was a general objection. It may also be doubtful whether the assignment is sufficiently specific to require consideration.—Rule 1 of Supreme Court Practice; Williams v. Coosa Mfg. Co., 138 Ala. 673, 33 South. 1015.
In view of the fact that defendant’s Avitness Harrell, the conductor of the car on which plaintiff was a passenger manifested lack of recollection of the incidents of the collision, and especially in view of the fact that he testified, if any one Avas hurt on the car, he did not know it, the questions asked on cross-examination,
Tbe sixteenth and seventeenth assignments of error present for review rulings of tbe court' overruling objections propounded, by tbe plaintiff on cross-examination to Dr. Cunningham Wilson. We dismiss tbe assignments with tbe remark that tbe question covered by tbe sixteenth was not answered, and tbe answer to tbe question covered by the seventeenth was not prejudicial but favorable, to the defendant.
This brings us to- a consideration of tbe special charges refused to the defendant. Charge numbered 3, refused to tbe defendant, was tbe general affirmative charge in favor of tbe defendant as to tbe whole case, while charges numbered 1 and 2 were affirmative charges in favor of tbe defendant, but limited to, tbe third and fourth counts of tbe complaint, respectively. It is insisted by tbe appellant that these charges should have been given, upon the theory that tbe complaint and each count therein charged corporate negligence, as con-tradistinguished from the negligence of a servant or agent. Four cases decided by this court are cited by appellant’s counsel in support of the insistence: City Delivery Company v. Henry, 139 Ala. 161, 34 South. 389; Central of Georgia Ry. Co. v. Freeman, 140 Ala. 583, 37 South. 387; Southern Ry. Co., v. Yancy ,141 Ala. 246, 37 South. 341; Birmingham Sou. Ry. Co. v. Gunn, 141 Ala. 372, 37 South. 329. The counts in the cases charged wanton or intentional injury by the defendant, and they were held to be counts in trespass, and not counts in case. It was held in each of the cases that, the counts being in trespass for the acts of the defendant itself, and not for the unauthorized act of its servant for which it was responsible, to sustain them proof of actual participation on the part of the defendant in the damnifying act was essential. Testing the complaint in the case at bar by what was said by the court of counts 1 and 2 in the case of City Delivery Co. v. Henry, supra, every one of its counts is in case, and not in tres
But the appellant insists, further, with respect to the second charge, that the fourth count charged that the car was Avrecked, that there Avas no evidence to support the allegation, and, therefore, that charge 2 should have been given. The count does state that the car was Avrecked and collided Avith another car. But it Avill be observed that no negligence is alleged with respect to the wreck, nor are any of the plaintiff’s injuries attributed to a Avreek. It is alleged in the count that “as a proximate and direct result of said colliding plaintiff
The negligence alleged is not confined to the acts of the motorman, nor to any particular servant. The motorman may have- been in the observance of due care in running the car, and yet this would not close the inference that some other employe of the defendant was negligent in leaving the switch so that the car would run' on the side track, instead of continuing on the main line. So the insistence of the appellant with respect to charge 8 cannot prevail. The charge was properly refused.
Charge 4, refused to the defendant, is in this language: “There is no presumption of law in this case that the defendant was guilty of negligence which proximately caused plaintiff’s injuries.” Again we remark that the evidence without conflict showed that the plaintiff was a passenger on one of defendant’s cars, that it collided with another of defendant’s cars, in the collision, as the evidence strongly tended to show, the plaintiff received immediate injuries, and there was no evidence explanatory of the cause of the collision. On this state of the evidence it is obvious that the charge'is misleading in its tendencies, if it is not inherently bad.—Montgomery & Enfaula R. R. Co. v. Mallette, 92 Ala. 209, 9 South. 363; L. & N. R. R. Co. v. Jones, 83 Ala. 376, 3 South. 902; Ga. Pac. R. R. Co. v. Love, 91 Ala. 434, 8 South. 714, 24 Am. St. Rep. 927; Birmingham Ry., Light & Power Co. v. Bynum, 139 Ala. 389, 36 South. 736.
It was not exclusively for the injury which the plaintiff contended resulted in appendicitis that damages were claimed. The evidence showed other injuries to the person of the plaintiff, as alleged in the complaint, which were not insisted upon as causes of appendicitis. Hence the refused charge numbered 6 was properly refused as a misleading charge, if it was not vicious in other respects.
Charge 5, refused to defendant, was in this language: “The plaintiff cannot recover damages in this case if,
- The only remaining assignment of error (the twenty-fifth) relates to the refusal of the court to grant the defendant a new trial. The first insistence of appellant with respect to this assignment is that the verdict of the jury was excessive. We have carefully considered the evidence ivith respect to the question whether appendicitis resulted from a blOAv received by the plaintiff in the collision. The evidence is undoubtedly in conflict on the question. If the plaintiff received the blow on the loAver part of the right side of the abdomen, as she testified she did, and it superinduced appendicitis, on account of Avhich she had to undergo the operation, Avhicli the testimony sIioavs she Avas subjected to, it cannot be contended with any sIioav of reason that the verdict should be set aside as being excessive. On the evidence it Avas open to the jury to solve this question in faAror of the plaintiff, and Ave cannot say that there Avas any palpable failure of eAddence to support the verdict rendered. Hence, Avitli respect to this point, we cannot say that the court erred in refusing the motion for a new trial.
The only other insistence by counsel for appellant AAdtli respect to the overruling of the motion for a new trial is that the A'erclict of the jury Avas not arrived at in a legitimate Avay—that it Avas a quotient verdict. It has been said by this court that “a Avrdict is not a true verdict, the result of any arbitrary rule or order, Avliether imposed by the jury or the court, or officer in charge. If a jury should agree in advance that their verdict should be the result of a quotient of a division by 12 of
The defendant offered in support of the motion the affidavit of one of the jurors, and it must be conceded that the affidavit, considered by itself, fully supports the proposition that the verdict was a quotient verdict. But the court declined to consider the affidavit of the juror as evidence impeaching the verdict. In this ruling the court was in current with former decisions of this court. These decisions are rested upon the principle that the law and public policy alike declare that affidavits of jurors with respect to occurrences in the jury room amongst themselves may not be received for the purpose of impeaching their verdict.—Clay v. City Council of Montgomery, 102 Ala. 297, 14 South. 646; City of Eufaula v. Speight, 121 Ala. 613, 25 South. 1009; Hall's Case, 134 Ala. 90, 32 South. 750. See, also the following authorities: Dana v. Tucker, 4 Johns. (N. Y.) 487; 2 Thompson on Trials, § § 2603, 2618, and
The motion for a new trial was properly overruled. For the error in refusing charge 5, requested by the defendant the judgment is reversed, and the cause remanded.
Reversed and remanded.
Dissenting Opinion
— This is the second application for a rehearing in this cause. The case was affirmed in an opinion by the writer in which it was held
Instructions to juries should be accurate and clear, easy of interpretation, and not likely to mislead.—Peterson’s Case ,74 Ala. 34; 1 Mayfield’s Dig. p. 171, § 151. And charges that have a misleading tendency may be properly refused.—1 Mayfield’s Dig. p. 573, § 215. It was in recognition of these well-established principles that I condemned charge 5 in the original opinion put out. I said of the charge, quoting the case of Cunningham v. State, 117 Ala. 59, 23 South. 693 : “It is vicious, in that it is calculated to impress the mind of a juror with the idea that his verdict must be reached and adhered to without the aid of that consideration and deliberation with his fellow jurors which the law intends shall take place in the jury room.” It does not clearly hypothesize a fair consideration of the evidence by all the jurors,.but some individual jurors. In this respect it is misleading. It is the duty of jurors to consider carefully every part of the evidence, and, if necessary, reconsider it, and to hear and consider the views and arguments of their fellow jurors, with an honest and conscientious effort to reconcile any differences of opinion they may entertain of the truth of the matters put in issue. “The jury room is, surely, no place for pride of opinion, or for espousing and maintaining, in the spirit of controversy, either side of a cause. The simple object to be there effected is to arrive at a true verdict; and this can only be done by deliberation, mutual concession, and a due deference to the opinions of each
The case of Hale v. State, 122 Ala. 85, 26 South. 236, and Mitchell v. State, 129 Ala. 23,30 South. 348, are cited in support of the charge. I think those cases, and other cases like them on the point under consideration, should not be adhered to, or, at least, should be modified, so as to hold that such charges are misleading, and the refusal of such charges should not require a reversal.
Concurrence Opinion
concurs in the foregoing views of Denson, J.
Rehearing
(On application for rehearing.)
Application for rehearing overruled.