50 So. 113 | Ala. | 1909
Plaintiff sued to recover damages for bodily injuries sustained by him while a passenger in the wreck of a train operated by the defendant. As tending to- support the allegation that plaintiff was injured, and showing the extent and character of his injuries, it was proper to receive evidence of his physical condition within a reasonable time prior and subsequent to the injury, that he suffered loss of weight, .that he suffered pain a.t the time and down to the time of the trial such as he had not suffered before, and insomnia, and had done no work since, and had been able to do none, and to all of these things it was competent for the plaintiff to testify as. a witness in his own behalf, and the opinion of expert professional witnesses as to the cause of his subsequent condition might be received.—Alabama G. S. R. R. Co. v. Hill, 93 Ala. 514, 9 South. 722, 30 Am. St. Rep. 65;
A. witness having been asked -without objection to state what caused the wreck answered: “I believe fast running is all I could account for it, the wreck.” Defendant moved to exclude “it was fast running is all I could account for it” on the ground that it was not responsive, Whatever may have been the tenable objections to the answer as evidence, that part of it to which the objection was addressed was not open to the particular objection assigned, and there was no error in overruling the motion to exclude. The assignment of particular objection was a waiver of all others.—Jaques v. Horton, 76 Ala. 238; Floyd v. State, 82 Ala. 16, 2 South. 683.
Two counts set' out general charges of negligence on the part of the agents or servants of the defendant operating the train. Plaintiff was permitted to show that the train was not running on time — was behind. We cannot say that the fact that the train was late did not have a tendency to show that it was being operated at an unusual and immoderate rate of speed. There is natural tendency to haste when late, and while it is generally stated that no mere rate of speed constitutes per se negligence, this rule is in most cases formulated for the purpose of cases in which persons or animals are injured by coming on the track.—East T. V. & G. R. R. v. Deaver, 79 Ala. 216. “Railway companies being engaged in the business of conveying passengers and property, and that business being regarded of the highest importance, the speed of trains may be regulated with that end in view.” 3 Elliott on R. R. '§ 1204. “There may, however, be particular circumstances involved in the particular case which might justify the conclusion that there
On the cross-examination of Dr. C. B. Bibb, the defendant asked him whether he had ever seen sores on the plaintiff, and again whether he had ever seen a chancre on any part of the plaintiff’s person. On objection made, the court refused to permit these questions unless they were so framed as to relate to a time somewhere near the date of plaintiff’s injury. It would greatly retard the trial of causes of the sort and add nothing to their proper solution if parties were allowed to inquire into every ailment from which plaintiff may have suffered, no matter how remote. Evidence of the kind to come within the requirement of materiality must be so nearly related to the point of time of the injury complained of as to afford an inference of appreciable weight that the accident did not effect a change in the physical condi
The court committed no error in sustaining plaintiff’s objection to defendant’s question propounded to plaintiff as follows: “Is it not a fact that Dr. Young told you . that, if you did not stop drinking, it might make you insane?” Of course, the fact that plaintiff was drinking or a drinking man could not be proved by Dr. Young’s unsworn statement; nor was it competent in the Ava.y of contradiction, for he had sworn to nothing to the contrary nor had he been interrogated in reference to the statement supposed to have been made by him.
Defendant objected to the question which is made the subject of the twenty-seventh assignment of error on the ground that it was leading and suggestive. It was with
There was testimony that among the other troubles alleged to have been suffered by plaintiff subsequent to the wreck his eyesight had become bad — worse than it had been before. However weak and inconclusive this evidence may have appeared to the jury, it was for them to determine its weight in connection with all the evidence. Charges 1, 8, 9, and 10, requested by the defendant, were therefore properly refused.
The plaintiff having shown an injury caused by the wreck of defendant’s train while he was a passenger thereon, or at least having offered evidence which made it necessary to consider his injury under such circumstances as one hypothesis of the case, that hypothesis proven, cast upon the defendant the burden of reasonably satisfying the jury that the wreck was not due to negligence on the part of the defendant.—Ala. G. S. R. R. Co. v. Hill, supra. The jury were at liberty under the evidence to refer the injury to either of the causes stated in the complaint, and the general affirmative charges, on the whole case, and upon separate counts, were properly refused.
Other assignments of error are not insisted upon in argument in such way as to demand consideration.—Hodge v. Rambow, 155 Ala. 175, 45 South. 678. They have, however, been considered, and no reversible error found.
Affirmed.
