173 So. 881 | Ala. | 1937
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *94 This suit, brought by appellee, J. A. Rogers, against appellant, H. D. Pollard, as receiver of the Central of Georgia Railway Company, was for personal injuries and damages sustained as the result of plaintiff's automobile truck being "run against by a train * * * operated by the defendants."
The trial was had on the simple negligence counts, resulting in a judgment for the plaintiff.
Defendant's motion for a new trial was overruled, and from that ruling of the court this appeal is prosecuted, for error is assigned predicated thereon.
It is elementary that the general affirmative charge should not be given when there is conflict in the evidence. McMillan v. Aiken et al.,
The evidence for the plaintiff shows the automobile was brought to a stop before entering upon the crossing of more than one, or parallel tracks, and that the open space between the tracks was small. Some *96
witnesses state that such space was not sufficient within which to stop the automobile with safety between such parallel tracks. The photographs in evidence present a question as to this fact for the decision of the jury. So, also, as to what is or is not contributory negligence as to entering upon and proceeding over several railroad tracks alongside and immediately adjacent is dependent upon the facts of each case, and all the attendant circumstances. There is no hard and fast rule to be observed as to procedure over a crossing after entering upon the first of several parallel or immediately adjacent tracks. Cunningham Hardware Co. v. Louisville N. R. Co.,
The flagman's duty ends after the train has reached or stopped on the crossing, and he is not negligent in then leaving his post of duty, since the train itself is sufficient warning of its presence. Southern Ry. Co. et al. v. Lambert,
We come to a consideration of the action of the trial court in instructing the jury, to which instructions exceptions were reserved. Such exceptions will be considered as they are definitely or specifically reserved. Ex parte Cowart,
The first exception taken to the oral charge is not definite enough, under the requirements, to bring the same to the attention of the court and give opportunity for correction, if the court so desires. However, when the statement or instruction is considered with the whole charge given, and with reference to the pleading and evidence, there was no error committed. Louisville N. R. Co. v. Crick,
The exception to the oral charge, "Then, under these circumstances, you are to determine whether or not the plaintiff was negligent and whether or not the defendant was negligent and which negligence caused the accident," was without error, when the context of the charge is considered. It did not assume or instruct the jury that plaintiff or defendant was negligent; that issue of the respective facts and the resultant injury and damages being left with the jury.
That portion of the oral charge to which exception was taken, viz., "* * * contributory negligence, that is, that the negligence that existed was the negligence of the plaintiff," must be taken in its context, and, when so considered, was without error.
The words, to which exception is reserved, and considered as a part of the instruction given, are: "Now, gentlemen, if you find that this accident and the resultant injury were caused by the negligence of this plaintiff in negligently operating his Ford truck, then he would not be entitled to recover and your duty would have been finished and you need not go any further. If however, you conclude that this damage and collision was caused by the negligence of the defendant, if would be necessary then for you to go further and determine what damages you in your sound judgment believe he is entitled to." In this instruction there was no error. The court had theretofore instructed the jury as now to be indicated. And when the oral charge is considered as a whole, as it must be, the defendant was given the benefit of his plea of contributory negligence, as the court instructed the jury, saying: *97
"Now, are you reasonably satisfied after hearing both sides of this case that the defendant was negligent there and that that negligence caused the accident and resultant damage? If so then the plaintiff would be entitled to the verdict. If, on the other hand, after considering all of the evidence, and considering the burden of proof, the rule for which I have given you, you conclude that this collision and the resultant damage was caused by the negligence of the plaintiff, then you would find for the defendant on his plea of contributory negligence."
The law of such a case is stated in many decisions — it is "axiomatic * * * that the plaintiff ought not to recover in a negligence case, unless he proves the negligence alleged; and he cannot recover even then, if he himself or the defendant prove that his (plaintiff's) own negligence proximately contributed to that [negligence] of the defendant to produce the injury received, provided, however, this contributory negligence is, specially pleaded." Stowers v. Dwight Mfg. Co.,
The complaint was against the defendants, Central of Georgia Railway Company, a body; corporate, and H. D. Pollard, as receiver of the Central of Georgia Railway Company, a corporation. The train is shown to have been operated at the time and place indicated in the pleading — on the tracks of defendant railway company in the hands of and by the receiver named. No more accurate averment is required to inform defendants of the charge and claim made, and the damages sought. Section 5720 of the Code of 1923 authorizes plaintiff, when suing several defendants, whether sued as partners or otherwise, to recover against one or more of said defendants, but renders him (plaintiff) liable to costs to those against whom he does not obtain judgment. And in Rich et al. v. Brewer,
There were several questions asked the witness Perdue and allowed in the answer over objection of defendant, in an effort to explain contradictory statements made by the witness immediately after injury to plaintiff, and which were at variance with the testimony of the witness Perdue given on the trial. In this connection this court has declared that a witness may testify as a shorthand rendition of fact. We cite some of our cases as illustrations: Sovereign Camp., W. O. W. v. Hoomes,
The rule that obtains in this, and many other jurisdictions, with authorities collected in support thereof, is stated in the note, 69 A.L.R. page 1168, as follows:
"Evidence of the existence or absence of the emotions of fear, anger, joy, excitement, nervousness, earnestness, anxiety, disgust, curiosity, surprise, embarrassment, sympathy, despondency, displeasure, satisfaction, and the like, has thus been admitted. The competency of such testimony is based on necessity. Since it is well-nigh impossible to describe another's appearance in such manner as to convey to a jury an accurate picture of the emotion manifested by him at a given time, the admission of such evidence is not open to the common objection to nontechnical opinion evidence, that the function of the jury is being usurped. In answer to the contention that one may not testify as to the state of mind or mental cognition of another, it is frequently said that one's appearance under the stress of an emotion, manifesting that emotion, is a fact; and to say that another appeared to be excited at a given time is not an opinion or conclusion, but is the statement of a fact, within the common knowledge of all persons of normal understanding."
There are decisions in this and other jurisdictions in which a witness has been permitted to testify as to his own mental state at a particular time, 22 C.J. page 610, § 704; Birmingham Railway Electric Co. v. Jackson,
The prevailing rule to be applied to such inquiries has long since been announced by Judge Stone in South North Ala. Railroad Co. v. McLendon (1879)
This question was also considered by Judge Stone in Carney v. State (1885)
In Raisler v. Springer,
Such are the rules by which the examination and the exceptions thereto of the witness Perdue are to be tested, together with the exceptions to the general uncommunicated motive and intention rule, now to be stated. Turner v. State,
The plaintiff called as a witness one J. A. Perdue, who testified to facts that supported the plaintiff's cause. On cross-examination witness admitted that previous to the trial, and immediately after the collision, he made a statement (under the unusual circumstances or conditions that prevailed as to himself), which contained tendencies inconsistent with the testimony given on direct examination. On his redirect examination witness was asked of his *99 companion (appellee) in the car at the time of the collision, and answered, as follows:
"Q. Was he (Rogers) in a dying condition? * * * A. It looked like he was.
"Q. Were you worried about his condition? * * * A. Yes.
"Q. Was your mind clear at the time you signed the paper? * * * A. No.
"Q. What was the condition of your mind? * * * A. I don't know. I was just kinder dazed. I didn't know what it was all about."
Exceptions were reserved and motions made to exclude these questions on the ground that the questions asked "witness to testify to his undisclosed mental operations."
The plaintiff, in propounding the questions, stated that the answers tended to shed light on his condition at the time he signed the paper inquired about. The paper was in evidence and contained a tendency of evidence contrary to what witness had testified.
The jury had the right to consider these statements of the witness with the other evidence, in the light of the unusual circumstances under which they were given, to ascertain the truth of the facts detailed, and to determine the material fact of whether or not the colliding box car was moving or standing when and where the impact with the automobile occurred. In these rulings, the trial court was correct.
Conceding, without deciding, that under ordinary circumstances some of these rulings would have been forbidden by the general rule of evidence, which disallows a witness to testify to what his intent or undisclosed state of mind is, yet the rulings of the trial court were proper under the shorthand rendition of fact rule as to the answers, "It looked like he was" dying; that his "mind was not clear at the time he signed the paper," "I was just kinder dazed. I didn't know what it was all about," and were justified under the exception to the general rule above referred to as to the undisclosed mental state or intent of the witness. The exception allows a witness, who on cross-examination admits making, or is shown to have made, a prior statement inconsistent with that testified on direct examination, to give his own undisclosed intent, motive, or other mental state, as an explanation for having made the prior inconsistent statement. This right is established and well fortified by the ancient holdings of this and other courts which we will now examine.
In 1 Greenleaf on Evidence (15th Ed.) pp. 617, 618, § 467, the text is:
"After a witness has been cross-examined respecting a former statement made by him, the party who called him has a right tore-examine him to the same matter. The counsel has a right, upon such re-examination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions, used by the witness on cross-examination, if they be in themselves doubtful; and also of the motive by which the witness was induced to use those expressions; (Dole v. Wooldredge, 142 Mass. either the expressions or the motives of the 184 [7 N.E. 832]) but he has no right to go further and to introduce matter new in itself, and not suited to the purpose of explaining witness." Jones Ev.(2d Ed.) § 872.
In Campbell v. State,
"It is a well established rule of law, that where a witness has been cross-examined respecting his former statements with a view of impairing his credit, the counsel who called him has the right to re-examine him, so as to afford him an opportunity of explaining such statements (2 Russell on Cr. 937); and it is also said by the same authority, that he may be asked what induced him to give to the person or persons to whom he made the communication the account which he has stated in the cross-examination. — ib. 937; 2 Brod. Bing. 297. These authorities show that there was no error in admitting the witness Stiff to make the explanation, as to the motive which influenced him in saying no more than he did about Campbell's confessions on the occasion inquired of in the cross-examination."
In the case of Lewis (a slave) v. State,
It is well settled that the general rule would ordinarily render incompetent the *100
statement of a witness giving his uncommunicated motive or reason for the given act, subject, however, to the well-recognized exception thereto, that when a witness has admitted on cross-examination the use of certain expressions or statements tending to discredit his testimony, he may on redirect examination in response to proper questions state what induced him to make such expressions or statements,although it is but an uncommunicated motive. Turner v. State,
This is merely a restatement of the rule of the ancient law on the question, as stated in the excerpt from 1 Greenleaf on Evidence (15th Ed.) pp. 617, 618, § 467, and as announced by this court in Campbell v. State, supra, and in Johnson v. State,
"The witness, on his cross-examination by the state, conducted with the view of impeaching him, had, as we have seen, made an answer to the question, which, unexplained, tended to throw discredit on his evidence. To refuse to allow him, under such circumstances, to explain his motive in making the statement, would violate well-established rules. Mr. Greenleaf says: 'Common justice requires that, first calling his attention to the subject, he should have an opportunity to recollect the facts, and, if necessary, to correct the statements already given, as well as by a re-examination, to explain the nature, circumstances, meaning and design of what he is proved elsewhere to have said;' and, as the author says, he may be asked the motive by which he was induced to use such expressions. 1 Greenl.Ev. §§ 462, 467. And, touching the same principle, this court has heretofore held, that he may be asked what induced him to give to the person to whom he made the communication, the account of it which, on the cross-examination he admitted he gave. Campbell v. State, 23 Ala. [44], 76; Lewis v. Post, 1 Ala. [65], 69; 2 Russ.Crimes, 937. We must hold, therefore, that the court below erred in excluding this evidence."
To like effect are the holdings in Thomas v. State,
There was no error in the ruling on evidence as to the witness W. L. Standridge. He stated the facts as to the physical condition of the impact, saying: "When I got there a corner of that freight car was in the front door or right against the driver of that truck; as to whether the driver of the truck was pinned down by the freight car, he was fastened down, and it was the corner of the freight car that was holding him there, and we couldn't get the man out on account of that; that was the difficulty; we couldn't move the car to get him out for a long time; that was because the truck was fastened; as to whether it was because the corner of that freight car was stuck in the door and the man pinned down, I don't know whether it was stuck in the door or the door stuck in it, the corner of the freight car was in the door of the truck; the truck had been bent all the way from the head right back to where it went under; as to whether the impact bent the whole car, I don't know what bent it but it went under that; the car was bent from the front back to the steering wheel; I didn't see any bent place on the other side; I was around on the other side trying to help get the man out, and I didn't notice any bent place on the other side. * * * I stayed there until he was extricated from the automobile. The train did not pull up. * * * 'I asked him to and he said he couldn't.' " The witness was then asked, with reference to the engineer: "Q. And now I will ask you the question: You were talking to the engineer and the engineer said he couldn't pull up the train. Did he give you any reason?" and the reply was, "I can't." That witness then stated that "the box car had the steering wheel fastened down. The automobile truck was standing on its four wheels."
In the instant case the reference in the evidence was to apresent condition, and was not the recitation of a past fact or condition. In the case of Louisville Nashville Railroad Co. v. Pearson, Adm'r,
Here, the injury and damages were impending, concurring, and continuing; the automobile and its occupant being so pinned down and attached to the car of the train that they could not be moved without further probable injury and damage. The conversation between the witness Standridge and the engineer illustrated the condition of the plaintiff and the two vehicles under and in which he was pinned down and could not be liberated by moving the train. The defendant's agent merely said that he could not pull the train off the automobile and its occupant. Travelers' Ins. Co. v. Whitman,
The witness Mitchell was asked: "If that box car had been moving and had run into that automobile while the box car was moving towards Birmingham and that sill step had been bent, in what direction would it have been bent." Plaintiff objected to this question, and the court, sustaining the objection, stated: "That is a matter of inference for the jury to draw." To this ruling of the court the defendant reserved an exception. An expert opinion was not required; the answer merely called for matter of ordinary observation by the witness, leaving to the jury to infer or draw from the facts detailed under the issues of the case. There was no error in this ruling.
The majority, composed of ANDERSON, C. J., and GARDNER, BOULDIN, BROWN and KNIGHT, JJ., are of the opinion that the case should be reversed because of erroneous instructions embodied in the oral charge of the court, which are in conflict with the well settled rule that although the defendant was guilty of negligence proximately causing the plaintiff's hurt and damage, yet if the plaintiff himself was guilty of negligence, and his negligence proximately contributed in any degree to such hurt and damage, he cannot recover. Several of the excerpts from the oral charge noted in the opinion, to which exceptions were reserved, are in conflict with this settled doctrine.
The writer and Mr. Justice FOSTER are of the opinion that the instructions at most called for explanatory charges on the part of the defendant.
All the Justices agree to the other rulings treated in the opinion, except as above indicated.
The judgment of the circuit court is reversed and the cause remanded for the reason stated above.
Reversed and remanded.
ANDERSON, C. J., and GARDNER, BOULDIN, BROWN, and KNIGHT, JJ., concur.
THOMAS and FOSTER, JJ., dissent on the point indicated.