Birmingham Railway & Electric Co. v. Jackson , 136 Ala. 279 ( 1902 )

McCLELLAN, C. J.

The testimony of the plaintiff that he “had to get on the electric car track or right at it in order to cross the A. Gf. S. track that that switch engine was on,” was open to the objection interposed to it by the defendant: It was in form and substance a mere conclusion of the witness upon facts which were capable of being fully laid before the jury. The court’s action in allowing it to be adduced was erroneous.— Bullock v. Wilson, 5 Port, 338; Gibson, v. Hatchett, 24 Ala. 201; Jones v. Hatchett, 14 Ala. 743; Otis v. Thorn, 23 Ala. 469; Tanner’s Executor v. Louisville & Nashville Railroad Co., 60 Ala. 621, 626, 643; Birmingham Railway & Elec. Co. v. Baylor, 101 Ala. 488; E. T. V. & G. R. R. Co. v. Watson, 90 Ala. 41; Reeves v. State, 96 Ala. 33; McCutcheon v. Loggins, 109 Ala. 457; A. G. S. R. R. Co. v. Tapia, 94 Ala. 226; Baker v. Trotter, 73 Ala. 277; Carney v. State, 79 Ala. 14.

The testimony of the plaintiff that he had not become aware that the car was moving on or towards him before it struck him was not the statement of a conclusion but of a concrete fact. It was not subject to the objection made to it, if to any.

The testimony of Ayers that the motorman was “doing all he could to stop” was illegal. It was not responsive to the question, and hence plaintiff had the light- to have it excluded though the question was not objected to. And even had it been responsive to the question the court committed, no error in excluding it, though for want of such objection the plaintiff would not have been entitled to have the answer excluded.

The foregoing are the only rulings on evidence assigned as error and discussed in the brief for appellant. There were other exceptions to rulings upon the competency of testimony, but, of course, we have not considered them.

The rulings' of the court in refusing charges 2, 3, 4, 5, 6, 7, 10, 12, 13, 14, 16, 17, 18, 19 and 23 requested by defendant are assigned as erroneous,' and these assignments are insisted upon in appellant’s brief. On the issues of fact presented, by the pleadings and upon which there was evidence pro and con, we are of opinion that the trial court committed no error in any of these rulings. Those issues were, first, whether the motorman was guilty of negligence in respect of efforts to avert the disaster after he became aware of the peril of the plaintiff; second, whether the motorman consciously failed after he became aware of plaintiff’s peril to use all menus in his power to avoid running over him ; and, third, whether the motorman though not aware of plaintiff’s peril in time to have avoided injuring him was guilty of reckless and wanton or willful misconduct in running bis car onto that crossing in the manner and under tlie circumstances some of the evidence tends to sIioav. Tlie crossing appears to be just such a one as is referred.to in Ga. Pac. R’y Co. v. Lee, 92 Ala. 262, 271, and it avhs open to tlie jury to find on the evidence that the motorman was guilty of wantonness in running his car across there at the time and under the circumstances at and under which he attempted to run it, though he may not have been at any fault after he discovered the position of plaintiff and realized the peril of it. Further than is involved in Avhat we have- said we deem it unnecessary to discuss the charges referred to.

Reversed and remanded.