Southern Railway Co. v. Taylor , 148 Ala. 52 ( 1906 )

WEAKLEY, C. J.

—It must be held, upon the authority of Southern Railway Co. v. Morris, 143 Ala. 628, 42 South. 17, and Southern Railway Company v. Morris, 42 South. 19, that the duty rested upon the defendant to keep the bridge in repair, and that the failure to prove the defendant constructed the bridge was not fatal to a recovery. The case last decided also vindicates that portion of the court’s oral charge to which an exception was reserved. Upon the trial there seems to have been no controversy as to the identity of the bridge spoken of by witnesses for both- parties with that alleged in the complaint, and there was no dispute as to the defective condition of the bridge; indeed, appellant’s counsel in their brief concede it was defective.

The' evidence of defendant was entirely directed to the question of the extent of the injury to the mare and the amount of plaintiff’s damage. The ■ complaint claimed that the animal was so crippled that she became valueless, and it is undisputed that she died within a few weeks after the accident, although defendant contends that her death ivas not proximatelv caused by the injury. The evidence conflicted as to the value of the mare; the plaintiff’s witnesses placing her value at from $75 to $100, while the defendant’s witnesses valued her at from $35 to $50. The jury’s verdict assessed the damages at $75. With this much of preface, we proceed to a consideration of other contentions of counsel for appellant not already disposed of.

It was not a fatal variance that plaintiff did not prove the exact day in July laid in the complaint. The only authority cited to support appellant’s- contention in this connection is E. T. V. & G. R. R. Co. v. Carloss, 77 Ala. 443, which was decided under a statute wholly inapplicable to this case even if it- were now in force. It was repealed by its omission from later codifications.

No reversible error was committed by the court in refusing to put plaintiff to an admission of the showing for the absent witness Johnson. The application was addressed to the irrevisable discretion of the court.—A. G. S. R. R. Co. v. Hill, 93 Ala. 514, 9 South. 722, 30 Am. St. Rep. 65; De Armam v. State, 77 Ala. 10.

The witness Kirkland was not shown to have been qualified to express an opinion as to- the cause of the mare’s death, nor to possess any special knowledge beyond that of an ordinary juror in reference to the consequences of injuries to horses. Objection to the questions embraced in the eighth and ninth assignments of error were, therefore, properly sustained, even if the questions were such as might have been propounded to an expert. While a general objection may. usually be overruled without error, yet, when' the trial court sustains such an objection, the ruling will not be held erroneous, if any valid objection to the question existed.

The action was not brought for the death of the maie, but for injuries which the complainant alleged rendered-ed her valualess. If the defendant was liable for these injuries, and they rendered the animal worthless for service, the plaintiff was entitled to recover her full value, whether she died from the injuries or from some other cause. Evidence that she died a short time after the injury was before the jury without objection, not for the purpose of authorizing recovery for her death, but as circumstance from which, along with other evidence, the jury might infer that the injuries received had been sufficient to cause death, and had thus deprived the mare of all value. There is nothing in the record to show the plaintiff was claiming damages for the death of the mare, nor to indicate that the court proceeded beyond the averments of the complaint in charging the jury upon the subject of the extent of the recovery, nor that any instructions were given the jury by the court, either voluntarily or upon request of the plaintiff, which allowed the jury to award damages for the death of the mare. In the absence of any exception on the subject, we may presume the court properly instructed the jury that recovery was to be had, if at all, for the injuries, and not for the mere death of the animal. Under these circumstances, there was no need to give charges, at the request of the defendant, upon the subject of damages for the death of the mare, or the want of a right to recover such damages. The refusal of charges 2, 4, and 8, therefore, does not constitute reversible error. Charge 8 was also faulty in requiring the court to state there was no evidence of a fact.—Jef&rson v. State, 110 Ala. 89, 20 South. 434.

Inasmuch as the undisputed evidence showed a failure upon the part of the defendant to keep the bridge in a proper state of repair, and hence a breach of its duty, no error was committed in refusing charge 5.

In view of the wide range in tbe opinions of tbe witnesses upon tbe subject of tbe value, and tbe better opportunity of tbe trial'judge to determine whether a verdict within tbe range of tbe evidence is excessive, we cannot affirm there was error in overruling tbe motion for a new trial.

Affirmed.

Haralson, Dowdell, and Denson, JJ., concur.