68 So. 342 | Ala. | 1915
(1) The wrong and injury complained of throughout was that plaintiff had been made ill by food furnished to him by defendant. Count 4, added by amendment at the trial, stated no new cause of action,
(2) It is rather obvious that the assignments of error based upon rulings on evidence have no merit, and they have not been very seriously argued. Some of these rulings related to- opinion evidence. The witnesses whose opinions' were admitted were expert, some as medical men, others as cooks and persons long accustomed to handling and preparing oysters for the table. A witness may have expert knowledge of some of the ordinary affairs of life. — Staples v. Steed, 167 Ala. 241, 52 South. 646, Ann. Cas. 1912A, 480. We have found no error in these rulings.
The court gave the law in charge to the jury as laid down in this case on former appeal. — Travis v. Louisville & Nashville R. R. Co., 183 Ala. 415, 62 South. 851. It would- serve no purpose to go over the subject again.
Charges were refused to appellant which went to the proposition that the evidence did not warrant an inference of negligence on the part of defendant, its servants and agents. By competent expert opinions of attending physicians appellee sought to show that his illness was the result of ptomaine poison, and, by a process of exclusion, that the putrefactive bacteria producing the poison found their way into his stomach by means of the food served to him on defendant’s dining-car. If the evidence to this effect was to- be believed —and- we find nothing to discredit it — appellee’s case thus far was quite well established. This much established! the result of the ruling on the former appeal was to put upon appellant the burden of showing that its
(3) Charge 43, refused to appellant, was a mere argument, and laid undue stress upon parts of the evidence. The conditions named in the charge, which we construe, which at least the jury may have construed, as the conditions appearing to appellee when he ate the food, were not conclusive of the case. As to the oysters at
It results that the judgment must be affirmed.