Nashville, C. & St. L. Ry. v. Hinds, 60 So. 401

Nashville, C. & St. L. Ry. v. Hinds

60 So. 401 | Ala. Ct. App. | 1912

PELHAM, J. —

The plaintiff’s demurrers to the defendant’s fourth special plea were properly sustained.— N., C. & St. L. Ry. Co. v. Hinds, 178 Ala., 59 South. 669. Nor was the court in error in sustaining the plaintiff’s demurrers to the defendant’s fifth special plea. The plea as framed is palpably bad, as a plea in bar to the complaint.

*539The witness Elrod was shown to have had sufficient experience in shipping cattle to he allowed to answer the question as to the animals having been “too loose” or “too tight” when loaded in the car for shipment. It is a matter of common practice to allow stock dealers and those acquainted with handling stock to testify as experts concerning the management of stock and matters peculiarly within their knowledge. — Jones on Evidence, §§ 380, 381.

No exception is shown to the question eliciting the evidence of Hinds that the bull was worth-$40, and this court is not authorized to review the objections to the admission of this evidence.- Allison v. State, 1 Ala. App. 206, 55 South. 453.

Nor was the plaintiff precluded from showing the real value of the animal. It was relevant, if for no other purpose, to show whether or not the limitation by contract of liability was grossly unreasonable or greatly less than the real value of the animal shipped. ■

Charges 2, 4, and 5, requested by the defendant, were properly refused. There were tendencies of the evidence and inferences that could properly be drawn from it that would not authorize the court to determine those facts, and take from the jury the consideration of the defendant’s liability for the animals embraced in these charges. It is improper for the court to give charges assuming facts, or determining the evidence when reasonable minds might reach different conclusions from the evidence offered. — So. Ry. Co. v. Ellis, 6 Ala. App. 441, 60 South. 407, present term. The court properly stated the law on this proposition to the jury in charges given at the instance of the defendant (numbered on the margin of the transcript by us 10 to 14 inclusive), and properly left the finding on the facts, and the inferences to be drawn from the evidence, to the jury.

*540Charges 3, 7, and 8 did not properly state the law as applicable to the evidence and the issues before the court. The defendant was sued as a common carrier. The evidence without conflict showed the relation of shipper and common carrier for a reward to exist between the plaintiff and defendant. No special defense was interposed seeking to limit or exempt the defendant from the rule of law imposing on it the burden of proof to reasonably satisfy the jury that the injuries received by the animals did not occur while they were in the keep or custody of the defendant as the delivering carrier. The burden of proof to show this rested upon the defendant. — C. of Ga. Ry. Co. v. Dothan Mule Co., 159 Ala. 225, 49 South. 243.

Charge 6 is improper and misleading in the light of the testimony of the witness who loaded the cattle that he called the attention of the defendant’s agent to cracks or holes in the car, and that the agent instructed him to load them in the car notwithstanding. It is not such a charge as the court can be put in error for refusing, as it singles out and gives undue prominence to part of the evidence, and is an argument rather than a succinct statement of any legal principle.

The court upon hearing the defendant’s motion for a new trial on the grounds that the verdict was excessive and the evidence not sufficient to support it reduced the verdict from $286 to $175. We are unable to reach the conclusion, after a careful consideration of all of the evidence set out in the record, that the verdict, as reduced by the court on the hearing of defendant’s motion, is excessive, or so clearly against a decided preponderance of the evidence and the inferences that might fairly be drawn from it, as to convince us that it should not be allowed to stand under the established rule. It is the settled rule of law in this state that the *541refusal of the trial court to set aside a verdict because not supported by the evidence will not be disturbed, and a reversal ordered on that account, unless there was a plain and palpable failure of the evidence to support the verdict. This has been the rule since declared in the case of Cobb v. Malone, 92 Ala. 630, 9 South. 738. See Montgomery-Moore Mfg. Co. v. Leeth, 2 Ala. App. 325, 338, 56 South. 770, and authorities there cited.

We find no prejudicial error authorizing a reversal of the case, and an affirmance of the judgment appealed from is ordered.

Affirmed.

Walker, P. J., not sitting.