65 So. 981 | Ala. | 1914
In the first count of the complaint the plaintiff alleges that his intestate, Ellen
(1) We direct attention to the fact that, under a videlicit,. the injuries of the plaintiff were fixed in the complaint as having occurred on June 29, 1912. The plaintiff Avas therefore not held to proof as to the exact day. We also direct attention to the fact that in the second count of the complaint it is alleged that Ellen Benson, while a passenger of the defendant, was injured because.a servant or agent of the defendant, acting in the line of his employment, negligently ran or caused to be run with great violence a car or engine upon or against the car upon which plaintiff’s intestate was,” etc. We also state that the undisputed evidence showed
(2) The first witness introduced by the plaintiff was John J. Cochran. He testified that he was at Pike Road in June, 1912, and was there every day; “that he remembered the occurrence of a train being off the track between Pike Road and Montgomery; that he did not know that he saw any other train that day except the train off the track.” The plaintiff’s attorney then asked him the following question:
“To the best of your recollection did1'you see a train run into a car or anything on that day?”
The witness answered:
“I saw a freight train back into another one with a great deal of force, but whether it was that day or not, I do not know.”
When the above question was asked there was nothing in its form or in its substance to indicate to the court or to the defendant that it called for irrelevant testimony. The plaintiff had, just before asking this question called the attention of the witness to these matters which all the parties regarded as of importance in this case, viz., to Pike Road, to the month of June, 1912, and to the derailment of a passenger train hear Pike Road. The second count of the complaint alleged that the plaintiff’s intestate received her injuries be
The defendant, in failing to interpose an objection to the above question, as it apparently sought only relevant testimony, was without fault in not objecting to it before the witness answered it, and we do not think that by its failure to so object the defendant subjected itself to the criticism of speculating upon the chances for a response favorable to it.—Coppin v. State, 123 Ala. 58, 26 South. 333. “There is some want of harmony in our decisions upon this point, but the true rule seems to us to be that if the question asked seeks to elicit illegal or irrelevant testimony, and the answer is responsive, and the party against whom it is offered makes no objection (to' the question before it is answered) this is one of the exceptions to the general rule,” and in such a case a motion to exclude such an answer is within the sound discretion of the trial judge, and his action in the premises will not be reviewed on appeal.—Coppin v. State, supra.
In the instant case, immediately after the witness had answered the above question, in the language above
(3) We are inclined to the opinion that the trial judge recognized the above rule when he overruled the defendant’s motion to exclude the above answer. The bill of exceptions, after reciting the defendant’s motion to exclude and the grounds of the motion, contains the following: “But the plaintiff’s counsel stated that they would connect it up by other witnesses’ testimony, and thereupon the court overruled the defendant’s motion to exclude said testimony.”
The entire testimony of the witness, John J. Cochran; related to this freight train, and this train was in no way shown to have had any connection with the injury of plaintiff’s intestate, and all of it was plainly admitted by the court upon the statement of plaintiff’s counsel that the plaintiff would “connect it up by other witnesses’ testimony.” The court not only had a right to rely upon this statement, but counsel for defendant also had a right to rely upon it and allow the examination of the witness to proceed upon the particular subject which plaintiff’s counsel had stated that they would “connect up by other witnesses’ testimony” without interposing to each question propounded to the witness a specific objection. Each question propounded about this freight train, coupled with the statement of counsel for plaintiff that they would “connect it up by other witnesses’ testimony,” called, not for irrelevant or illegal testimony, but for legal and relevant testimony. When, therefore, the plaintiff closed his case without “connecting up” the testimony of John J. Cochran, the
(4) We have made a painstaking examination of the bill of exceptions in this case, and we fail to see any connection whatever between the evidence of Mr. Cochran with reference to the freight train and the damage it did “some day last summer,” i. e., the summer of 1912,. and the injury which, it is alleged, the plaintiff suffered while a passenger on one of the defendant’s trains while at Pike Road on, to wit, June 29, 1912. A mere “guess” is not such a legal conclusion as the law authorizes a jury to fix as a basis upon which to found a verdict. The inference that the crash of the freight train into the box car which was broken open by the force of the impact, a thing which occurred sometime during the summer of 1912 at Pike Road, had the slightest connection with the injury of plaintiff’s intestate at that point while a passenger on a passenger train on, to wit, June 29, 1912, is too speculative and uncertain to admit of entertainment in a court where the rights of parties are to be determined by relevant evidence and legal substantial inferences, flowing naturally and rationally from such relevant evidence. When the existence of a
A remote, speculative and uncertain connection between the fact and the one sought to be inferred is insufficient.—Jones on Evidence (2d Ed.) supra.
(5) The trial judge in this case overruled the motion of the defendant to exclude the evidence of Mr. Cochran with reference to the freight train. The court left that testimony before the jury with the following instructions : “I will limit the testimony of Mr. Cochran with respect to the box car to the sole question as to whether it sheds light upon the question at issue here as to the jerking of the car in question. Of course, gentlemen, whether the car had lumber in it and whether the lumber fell out had nothing to do1 with this case, further than the question as to whether or not that was the car which gave the jerk of which this administrator complains. It is limited to that question.”
For the reasons above stated we are of the opinion that the said testimony of Mr. Cochran was admissible for no purpose, and that the trial judge should have granted the defendant’s motion to exclude it.
(6) We are not able to affirm that the above error of the trial judge was without injury to appellant. When a case is tried by a jury, the jury is entitled to receive, for their consideration, the relevant evidence offered by all the parties. They are entitled to receive no irrelevant or illegal evidence offered by any of the parties. It is essential in such a trial that the jury shall have the relevant facts. It is also essential that they shall have no irrelevant or illegal facts unless, indeed, the parties are willing for them to have such facts. “Jurors know,
In this case some of the witnesses for the plaintiff testified that at the time of the alleged injury to the plaintiff’s intestate the car in which they were sitting received a “mighty jar.” By allowing Mr. Cochran’s testimony to remain before the jury the trial judge, in effect, permitted the jury to engage, with his express sanction, in considering—and for aught we know in adopting as a fact—the remote and uncertain contingency that the freight train which broke open the box car some time during the summer of 1912, also caused the “mighty jar” which some of the witnesses claimed the passenger coach received on, to wit, June 29, 1912. When it is remembered that the defendant’s witnesses testified that there was no unusual “jar” at the time of the alleged injury the dangerous tendency of the testimony under discussion becomes apparent. If the freight train about which Mr. Cochran testified had any connection with the alleged injury of the plaintiff’s intestate, no fact from which such an inference could be legally drawn was introduced in evidence.
It follows from what we have above said that in our opinion, in refusing to grant the motion of the defendant to exclude from the jury the evidence of Mr. Cochran with reference to the freight train, the trial judge committed an error for which the judgment of the court
Reversed and remanded.