Birmingham Southern Railroad v. Cuzzart , 133 Ala. 262 ( 1901 )

iMcCLELLAN, O. J.

There is no merit in the demurrer to the complaint. An averment that A “was in charge and 'Control and superintendence of said engine,” is no more than to aver that he was in charge of the engine; and the averment is supported by evidence that A. was the engineer operating the engine at the time in question. There was such evidence here. The court was, therefore, not in error either in overruling the demurrer or in refusing the general charge requested by defendant on the theory that the complaint averred one thing and the evidence went to prove another in this connection.

The complaint alleges that by reason of certain stated negligence of the engineer “a coupling pin was thrown with great force into plaintiff’s face striking him near his eyes, whereby serious injury was inflicted upon plaintiff, his right eye being permanently impaired, disfigured and injured, and from which plaintiff has suffered great mental and physical pain and anguish.” The clause “and from which plaitiff has suffered,” etc., etc., naturally refers back to the averment as to the pin striking him with great force near the eyes. Plaintiff’s testimony that from tins stroke of the' pin he had suffered pain in having headache a great deal and in having had pains darting through Lis head in the region of the eyes was relevant to the case so presented by the complaint, and was properly received.

The plaintiff: testified that since the hurt described in the complaint his eyes, or one of them, had in consequence been inflamed and weak. The theory of defendant was that this condition had existed before the injury was received. On cross-examination of the plaintiff, counsel for defendant propounded these questions to him: “State whether your father or mother, or some of your brothers and sisters have got weak eyes?” 'and “State whether your father has not got eyes that are inflamed and weak?” The court sustained an objection to each of these questions. Very high authority, none other indeed than the Good Book itself, is cited by counsel for appellant in support of his exceptions to these ruling® of the court. They sáy: “There is no truer saying in the Bible than that the sins of the fathers shall be visited upon the children unto the third and fourth generations. This is a law of heredity, promulgated by the Almighty, and is known of all men.” We have acquaintance with this sacred text; but we are not prepared to admit its application in the premises here. We do not know that inflamed or weak eyes is a sin within its terms, nor are we prepared to say that these infirmities have customarily such a descendible quality as that proof of them in the sire accounts for their existence in the son. The matter lies beyond our judicial ken. If the fact be as counsel insist it is in this connection, there should have been evidence of it; we do not judicially know it to be a fact. We do not think the city court erred in its rulings on the questions.

The sixth charge requested by the defendant proceeds on the assumption -of the absolute truth of the testimony of Dr. Ledbetter and the absolute correctness of 'his opinion as to the causes of the condition of plaintiff’s eyes. There was other evidence, that of the plaintiff himself, in conflict with his as to the causes of the condition in question, and the giving of this charge would have denied the jury’s undoubted right to find in line with such other evidence.

'Charges 7, 8 and 9 were properly refused to the defendant. The court was under no duty to tell the jury that the plaintiff has been able since his injury to earn approximately as much money as he did before, even if the evidence was without conflict to that effect. And there was evidence tending to show that he eould not now earn as much as he did before the injury.

Charge 10 refused to the defendant is bad for singling out and giving undue prominence to a particular fact of which there was evidence, and the infirmity is not relieved by the direction for this fact to be considered “along with all the balance of the evidence in the case.”

We are not prepared to say that the verdict of the jury is so plainly against the weight of the evidence or unsupported by the evidence that a new trial should have been granted by the city court.

Affirmed.