Birmingham Railway, Light & Power Co. v. King , 149 Ala. 504 ( 1906 )

DOWDELL, J. —

The complaint was sufficient, and not open to the demurrer interposed. — 5 Mayfield’s Dig. p. 754, § 74.

There was no error in excluding the answer of the witness Emery that “heavy trains like that always start slowly.” In the first place, the answer was not responsive to the question asked. In the second place, if there was error, it was error without injury, as the subsequent testimony of this witness was in substance and effect the same as the statement which had been excluded.

That part of the oral charge of the court excepted to by the defendant, and which is made the basis of assignment numbered 5, was free from error. The defendant’s contention is that it ignored a phase of the defendant’s evidence. The part excepted to, when taken in connection with other parts of the oral charge — and the charge must be taken as a whole (Decatur Car Wheel & Mfg. Co. v. Mehaffey, 128 Ala. 256, 29 South. 646) — was unobjectionable.

The part execepted to, and made the basis of assignment numbered 6, was, after exception taken, modified by the court, and, as so modified, was relieved of the objectionable feature insisted on in argument.

The juror challenged by the plaintiff was at the time in the employment of the defendant company as a motorman. The court committed no error in allowing the challenge. Wbat was said in Thomas v. State, 133 Ala. 139, 32 South. 250, as to the qualifications of jurors and the right of challenge for cause, is applicable here.

There was no error in refusing the written charge requested for the defendant. It was argumentative, and urns asked, as indicated in brief of counsel for defendant, for the purpose of answering an argument made by plaintiff’s counsel to the jury. Moreover, the charge, if not directly opposed to the case of Ala. G. S. R. R. Co. v. Hill, 90 Ala. 71, 8 South. 99, 9 L .R. A. 442, 24 Am. St. Rep. 7645 was, to say the least, under the principle laid down in that case, misleading. The bill of. exceptions does not purport to set out all the evidence, and it may be that the right.of the defendant to have the plaintiff examined by an expert surgeon was such that a denial of it by the court, if it had been requested, would have been reversible error.

We find no error in the record, and the judgment will be affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.