64 So. 207 | Ala. Ct. App. | 1913
This suit is by the appellee against appellant for personal injuries received by the former while a passenger on one of the latter’s trains, as the result of a violent and unusual jerk of the train, whereby he (the plaintiff), who was sitting on a seat in the passenger coach, was so violently jarred and jerked that
The plaintiff, over a general objection of defendant, asked one of the physicians who attended plaintiff this question, “Did you not diagnose the case at the time as a broken bone?” (referring to a cartilage bone, or ossified cartilage, between the neck bones), and received from the witness this answer, “I told him that it might be; I thought probably it might; * * * that is what I still think.” The only argument in appellant’s brief in support of his assignment of error predicated on the above objections is this: “What he [the physician] thought about the case at that time was entirely immaterial and illegal. The proper inquiry was: “What was his opinion at the time of the trial?” It appears, as will be observed from the foregoing quotation we give from the physician’s answer, that his opinion at the time of the trial was the same as his opinion at the previous time referred to; hence no injury, if error, resulted from permitting the question and answer.
A witness for plaintiff, in testifying to the latter’s decline in health following the accident, stated that plaintiff lost 10 or 15 pounds; whereupon defendant’s counsel asked him if he (the witness) “had ever lost 10 or 15 pounds.” We cannot see how, if he had, it would be relevant to any issue in the case, and the court did not err in sustaining an objection to the question.
The refusal of the court to give several charges requested by appellant in writing is assigned as error; but it does not appear from the bill of exceptions that the request was made before the jury retired to make up their verdict, and it will therefore he presumed, in favor of the ruling of the trial court, that the charges, if otherwise good, were refused for this reason. — Patterson v. State, 62 South. 1026; Hubert Morgan v. State, 63 South. 21; Donahoo & Matthews v. Tarrant, 1 Ala. App. 446, 55 South. 270; 2 Mayf. Dig. 576.
It affirmatively appears from the record that the portion of the oral charge excepted to, which forms the basis of the seventh assignment of error, was subsequently, and before the jury retired, corrected by the
The other portion of the court’s oral charge which was excepted to, and which is assigned as error in the eighth ground of assignment, is not sufficiently definite and specific to constitute a valid assignment of error. It reads: “The court erred in that portion of its oral charge set out at the bottom of page 33 numbered B.” Upon turning to the page referred to of the record, we find that it contains a continuation of the oral charge of the court, which is set out in full in the record, commencing on a previous page, and covering page 33 and several subsequent pages. On page 33 we do find a “B”; but one written in the margin of the record. How much of the court’s oral charge constitutes “B” we are unable to clearly see. Where “B” starts in the charge is probably plain, but where “B” ends cannot be determined. We infer that the use of the “B” was to point us to the beginning of that portion of the charge excepted to, intending the exception as ground in the record to make the assignment of error clear and definite. This exception, which is set out in the midst of the oral charge as copied in the transcript, reads: “The defendant then and there excepted to the court’s giving that part of the oral charge included in the parentheses above.” We find only one parenthesis — the first only — • and the last, if in the original bill of exceptions, was omitted from the transcript copy of it. We might be able to guess, but we are certainly unable to determine with any safe degree of certainty, what particular portion of the court’s oral charge we are asked to review.
We find no error in the record, and the judgment is affirmed.
Affirmed.