Birmingham Union Railway Co. v. Hale

90 Ala. 8 | Ala. | 1890

CLOPTON, J.

1. The physician, who attended the plaintiff, was permitted to testify that, when he first sawr her, “she was complaining of pain from an injury she said she had received.” As to statements made to the physician by a party who is the subject of the injury, the rule of exclusion extends to declarations as to its cause, or the way in which it occurred; these being regarded as mere narratives of past events, which must be proved by other and independent evidence. But, from the necessity of the case, he may testify to the party’s statements as to his symptoms, the locality and character of the pain, and explanation of his bodily condition, made while suffering, and for the purpose of enabling the physician to form an opinion of the nature and extent of the. injury.—Eccles v. Bates, 26 Ala. 655; Roosa v. Boston Loan Co., 132 Mass. 439; Ill. Gen. R. R. Co. v. Sutton, 42 Ill. 438. The statements of plaintiff, to which objection was made, come within the rule last stated; they related to the pain of which she was complaining, as having been produced by an injury, without reference to its cause, or manner Of occurrence. The court did not err in refusing to exclude the testimony. — 1 Whart. Law of Ev. § 263.

2. It is undoubtedly the rule of practice in this State, too-well and long settled to be departed ‘from, that in examining into the character of a witness sought to be impeached, the inquiry is not limited to character for truth and veracity, but may extend to his general moral character. Notwithstanding such extension of the rule, immoral conduct in any one particular, however it may bear on the question of general character, can not be put in evidence for this purpose. By a notorious want of chastity, a female will certainly obtain a bad character, and her general reputation, if she has acquired any, may be given in evidence to impeach her; but not the particular and independent fact that she is a prostitute, or keeps a house of ill-fame — the cause producing her bad character can not be inquired into, unless on cross-examination.—Holland v. Barnes, 53 Ala. 83; Motes v. Bates, 80 Ala. 387. The evidence as to the character of the house kept by the-witness sought to be discredited, and as to the orders of the municipal authorities in reference to her, was properly excluded.

3. The first charge requested by defendant is argumentative. We have repeatedly declared that mere arguments on specific parts of the evidence, which may be properly addressed to the jury, should not be formulated into legal propositions, and announced to them as such. There is no error in refusing charges of this character.-—Hussey v. State, 86 Ala. 34; Hawes v. State, 88 Ala. 37.

4. That a party suing for damages, for an injury caused by the negligence of another, has on. him the burden to prove-such negligence, and that it was the proximate cause of the injury, is an elementary principle. Necessity has modified the rule in the case of a passenger on a railway train, but not to the extent of entii’e.exemption from the necessity to make a prima faeie case of negligence. Proof of mere injury, without more, does not raise a presumption of negligence sufficient to impose on the company the burden to prove due care on its part. In order to recover, it is incumbent on plaintiff to show an accident from which the injury resulted, or circumstances, of such character as impute negligence. Railway companies are bound to exercise a high degree of care in providing-tracks and plants, locomotives and cars, competent and skillful employes, and all other' agencies and appliances required in the safe transportation of passengers and freight. When it is shown that an accident happens, which would not ordinarily have happened if due care and foresight had been exercised — • such as from the derailment of the train, or defect of the track or machinery, or from a collision, or from the breakage, or defective condition of any of the appliances employed in the business, or the method of their use — negligence may be presumed, or inferred; proof of an accident of such nature, or xuider such circumstances, establishes a prima facie case of negligence.—Del. Lack. & Wes. R. R. Co. v. Napheys, 1 Amer. & Eng. R. R. Cases, 52-59, n.; 2 Wood’s Railway Law, 1096, n.; 1 Whart. on Ev., § 859. The rule is clearly and comprehensively stated in Transportation Co. v. Downer, 11 Wall. 129, by Field, ,L: “A presumption of negligence frota the simple occurrence of an accident seldom arises, except when the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or misconstruction of a thing over which the defendant lias immediate control, and for the management and construction of which he is responsible.”

The injury occurred on a street car drawn by horses. When plaintiff proved that, on the stoppage of the car, she at once walked out on the platform to get off, and while in the act of alighting, the driver suddenly started the car with a jerk, which caused her to fall, whereby she was injured, she established a prima facie case of negligence in the management of the car; the burden of proof, which primarily rested on her, was uplifted, and the burden of disproof thrown on defendant. She was not required to make, in the first instance, other and further proof, that the car did not stop long-enough to enable her to get off with safety. On the case made by the evidence, negligence vel non became a question of inquiry by the jury on the entire testimony.—Ga. Pac. Railway Co. v. Hughes, 87 Ala. 610.

When the evidence is in eqxiipoise, the verdict must be against 'the party on whom the burden of proof primarily rested; but, in a civil case, a verdict may be based upon a 'preponderance of the evidence, if such preponderance is sufficient to satisfy the minds of the jury.—Vandeventer v. Ford, 60 Ala. 610. It can seldom be said, that the issue is not in uncertainty to some degree, whenever there is a. conflict of evidence. The latter’clause of the charge requested by defendant, to the effect, that if all tl e testimony in the case left the jury in uncertainty as to whether the plaintiff was injured by the carelessness of defendant’s driver, they must find for the defendant, lays down the rule too exactingly; the jury would probably have understood from the instruction, that they must be dearly convinced. The fourth and fifth charges asked by defendant, as framed, were calculated to mislead the jury as to the measure of proof.—Wilkinson v. Searcy, 76 Ala. 176; Lehman v. Kelly, 68 Ala. 192.

Affirmed.