63 So. 554 | Ala. | 1913
— It may be true that count 1 of the complaint does not expressly state that Bessemer is between Johns and Birmingham, yet it charges that the plaintiff was put off at Bessemer while going from Johns to Birmingham. If he was put off at Bessemer while going from Johns to Birmingham, Bessemer must have been an intermediate point and not beyond Birmingham, the plaintiff’s destination. There was no error in overruling the demurrers to this count.
There does not appear to have been any objection to the question to the witness Cooper which may have brought from him the statement that “the conductor told us all to get off at Bessemer.” Moreover, there was a conflict in the evidence as to whether the conductor told the passengers to get off at Bessemer or that they could get off and await the return of the train or remain on said train. The fact that the conductor told Cooper and others to get off when the train reached Bessemer, whether they or any of them heard him tell the plaintiff to do so or not, was corroborative of the plaintiff’s version and was a part of the res gestse.
The trial court did not err in declining to let the defendant show the great number of people along the line and the reasons for doubling back, as this did not justi
There was no error in permitting the plaintiff to show that he had a child in his arms when he got off the train. —A. G. S. R. R. Co. v. Sellers, 93 Ala. 9, 9 South. 375, 30 Am. St. Rep. 17. It may be true that in this case it was held that such evidence was admissible as an aggravation of the willful wrong, and there is no willful wrong charged in the present case; yet we think this evidence was legitimate to show that the plaintiff was incumbered and was a circumstance for the jury as to how he could and should conduct himself after alighting and whether or not he should have gotten shelter at Bessemer or gone on to Birmingham on the trolley. Moreover, the trial court charged out any right to recover for mental anguish on account of any anxiety about the child.
There was no error in permitting the witness to prove that he had to be in the rain after leaving the defendant’s train at Bessemer. There was evidence that the waiting room was not lighted or comfortable, and the condition of the weather was a circumstance to be considered by the jury in determining the damages this plaintiff may have sustained in seeking shelter or in getting from the train to the trolley car which he took to Birmingham. Of course, he should not have heedlessly aggravated his damages by going in the rain if he could have avoided it, but Cooper had already testified that the depot was not lighted, and he did not see any fire and it was, at least, a question for the jury as to whether or not the plaintiff should have remained in
As to whether or not the children that the plaintiff had with him got wet was but an indirect way of sIioaving that it was raining and the plaintiff got wet, but, even if this was improper,-the prejudicial effect of it was charged out by instructions to the jury that the plaintiff could not recover any damages growing out of his solicitude or anxiety for his children. They were traveling together, and it was difficult to prove that one got wet without creating a very strong inference that they all got wet.
There was manifest error in not permitting the defendant to show that the depot was lighted and had fires. It was not only competent evidence to be considered by the jury in fixing the plaintiff’s damages and in passing upon the action and conduct of the plaintiff in going out in the rain or seeking other shelter. Moreover, it was directly in rebuttal of the evidence that the plaintiff brought out by Cooper that the depot was not lighted and he saw no fires. It may be true that the defendant’s counsel objected to this evidence of Cooper, but the court overruled the objections, and the defendant then had the right to contradict the same.
The part of the argument of plaintiff’s counsel that was excepted to was not warranted by the evidence or by legitimate conclusions to be deduced therefrom and should have been excluded upon objection of the defendant. Whether or not the condition of the record shows such action or failure to act, on the part of the trial court, as to amount to reversible error in this respect we need not decide, as this cause is reversed for other reasons. It is sufficient to say that such argument is
Charge 8 refused the defendant was sufficiently covered by some of defendant's given charges. The judgment of the city court is reversed, and the cause is remanded.
Reversed and remanded.