66 So. 495 | Ala. | 1914
The appellee (plaintiff in the court below) sued appellant for recovery of damages for injury alleged to have been received by him while unloading a car of cotton seed which had been placed on a side track of defendant company for the purpose of unloading. The injury was to the hand of the plaintiff, and was caused by the door of the car being (as alleged) violently closed while his hand was upon the door facing, where plaintiff had placed it in order to keep himself from falling when the car was suddenly moved, etc. The complaint contained one count upon simple negligence. The cause was tried upon the plea of the general issue, and pleas numbered 2 and 3, of contributory negligence.
The first and second assignments of error relate to the ruling of the court in overruling the objection to the question propounded to the plaintiff,. “Did your hand ever get well?” and the refusal of the court to exlcude the answer, “No, sir; it gets stiff yet.” We are of the opinion that this was but a shorthand rendering of a fact. “The true line of distinction is this: An inference, necessarily involving certain facts, may be stated without the facts; the inference being an equivalent of a specification of the facts. * * * In other words, when the opinion is the mere shorthand rendering the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based.”—South & North Ala. R. R. Co. v. McLendon, 63 Ala. 276. There was no error in the ruling of the court.—L. & N. R. R. Co. v. Stewart, 128 Ala. 313, 29 South. 562; Mobile Light & R. R. Co. v. Walsh, 146 Ala. 295, 40 South. 560.
Assignments of error 3, 6, and 7, are not argued, and are therefore waived.—Harper v. Raisin Fertilizer Co., 148 Ala. 360, 42 South. 550.
The question as presented however, by the record, and that argued by counsel, are not the same. There is nothing in the record to show that any effort was made to prove that defendant company had its surgeon on the ground immediately after the accident, hut only that immediately following the accident the defendant offered to furnish its surgeon. The question argued by counsel is therefore not presented by this record for decision. There was no reversible error in the ruling of the court.
After much examination of plaintiff by defendant, on recross-examination, as to certain statements signed by him at the request of defendant’s agent, defendant’s counsel asked witness: “You knew what the truth of the transaction was then, as well as you do now, didn’t you?” Objection was sustained, and this constitutes the fifth assignment of error. The question called for no answer relevant or material to any issue in the case,
Refused charges 3, 4, 5, and 6 (assignments of error 8, 9, 10, and 11.) proceed upon the theory of contributory negligence. The pleas of defendant alleged that what was done by the plaintiff was done negligently, and that such negligence proximately contributed to the alleged injuries. Charges 3 and .4 omitted each of these essentials. Charges 5 and 6 are noted as being in the alternative. We will not discuss them further than to say that they fail to hypothesize negligence on the part of the plaintiff, or to show such negligence, as matter of law, from the facts stated, or to hypothesize timely warning to plaintiff. Whether they are subject to other objection need not be considered. They were properly refused.—Atlanta & Birmingham R. Co. v. Wheeler, 154 Ala. 530, 46 South. 262. They seem, besides, to be in substance covered by charge % given at the request of defendant.
Refused charges 7 and 12 seem to be based upon expressions in the opinion in the case of Central Railroad, etc., Co. v. Letcher, 69 Ala. 106, 44 Am. Rep. 505. In McGee v. State, 117 Ala. 229, 23 South. 797, it Avas said: “It often happens that judges in writing opinions, and authors of legal text-books in discussing or defining propositions of laAA, express themselves in language Avholly unsuited for the purposes of instructions to juries.”
What was there said Ave think applicable to these charges, and that the charges, if not otherwise faulty
We deem it unnecessary to treat separately the remaining charges refused to defendant. Suffice it to say that a careful examination thereof discloses that they were either covered in substance by charges given at the request of the defendant, or else were calculated to mislead or confuse, or were otherwise faulty, and that they were therefore properly refused.
The affirmative charge was also properly refused. The question of liability of the defendant was, under the evidence, a jury question.
It is also urged that the affirmative charge should have been given on acount of fatal variance between the proof and the averments of the complaint. A careful examination of the testimony of plaintiff, and of the complaint, does not reveal to us such fatal variance; and, besides, the record does not disclose a compliance with rule 34 (New Circuit Court Rules, 175 Ala. xxi).
We have carefully considered each assignment of error insisted upon by counsel in brief, and conclude that there is no reversible error shown. The judgment of the circuit court is therefore affirmed.
Affirmed.
