Southern Railway Co. v. Hobbs , 151 Ala. 335 ( 1907 )

SIMPSON, J.

This is an action for damages on account of injuries received from the running of the train against plaintiff’s wagon and team at a public road crossing.

1. The demurrer to the complaint, referred to in the first and second assignments of error, was properly overruled, as the complaint sufficiently states a cause of action under our decisions.

2. The demurrers to the second plea of defendant were properly sustained (third and fourth assignments). — L. & N. R. R. Co. v. Markee, 103 Ala. 160, 15 South. 511, 49 Am. St. Rep. 21; Railroad Company v. Bromberg, 141 Ala. 258, 37 South. 395.

3. The demurrers to the replications to the third plea were properly overruled, except that to the third replication, which should have been sustained, as that replication merely stated the general conclusion of the pleader, and did not state any facts. — 18 Ency. Pl. & Pr. pp. 654-656.

4. The demurrers to the replications to the third plea, which were refiled to the fourth plea, should have been sustained, for the reason that said replications do not in any way answer the allegation in said plea that plaintiff “drove upon the track, or sufficiently near the track, * * * and sought to drive across said track, when the train or engine * * * was so near that he was bound, to know and did know that he could not cross said track * * * before being struck by said engine.” It does not appear but that these allegations of the plea were true, and that it was after plaintiff had thus knowingly driven into a position of danger that the team became frightened. In addition it may be said that the replications, at any rate, simply show that the injury occurred from an inevitable accident, to-wit, from the team’s becoming frightened.

5. The demurrers to the fifth and sixth replications to the fourth plea were properly overruled, as these replications simply presented the general issue to said plea.

6. Eleventh, twelfth, and thirteenth assignments (J, K, L, and M) : The court erred in sustaining the motion of plaintiff to strike from the files rejoinders 1, 2, 3, and 4, which Avere not unnecessarily prolix, irrelevant, or frivolous.— Code 1896, § 3286; 5 Mayfield’s Dig. pp. 762, 763, No. 33; 18 Ency. Pl. & Pr. p. 72.

7. Assignment 17: The objection to the question to the plaintiff, as to whether he heard a train Avhistle before leaving his home, was properly overruled, as there Avas testimony tending to shoAV that several trains passed about that time, and this might serve to identify the train AAdiich struck plaintiff’s team, or Avith Avhich his team collided.

8. Assignments 18 and 18 1-2: The objection to the question to the plaintiff, “IIoav close to the crossing did your team get, in a sIoav trot, before they changed their gait?” ay as properly overruled, as this Avas a material circumstance tending to sIioav Avhether the plaintiff drove into dangerous proximity to the railroad before his team became frightened and unmanageable.

9. There Avas no error in overruling the objection to that part of the ansAver to the foregoing question: “They seemed to become frightened.”

10. Assignment 19 : The objection to the question as to hoAV far the train could be seen at a position 50 yards from the railroad Avas properly overruled. — E. T., V. & G. R. R. Co. v. Watson, 90 Ala. 41, 7 South. 813. The theory of the plaintiff was that his team became frightened and unmanageable, and that of the defendant Avas that the team never did become unmanageable, but were deliberately and carelessly driven to the railroad track without the necessary precautions. In either phase of the testimony, it was proper to show at what points the train could have been seen, if the plaintiff had “looked,” so as to determine whether he might not have avoided the accident.

11. Assignments 20, 21, 22, and 23 (and particularly 21), insisted on in argument: There was no error in allowing the witness to state Avhether his condition was as good as it had been before the accident, and then allowing him to explain in what particulars it was worse. While it is true that a man Avho is not a physician cannot describe technically his physical condition, yet he can describe it generally, and knows better than any one else whether he is sick or well, is lame, or has the use of all his members.

12. TAventy-fourth assignment: The error of admitting the question to Dr. Bishop as to Avhether there Avere any other railroad officials there was cured by the fact, that the answer Avas not injurious to the defendant.

33. TAventy-fifth, twenty-sixth, and twenty-seventh assignments: The court committed no error in overruling the objection to the questions to Dr. Bishop as to Avhat remedies he used in the treatment of the plaintiff. In the case of Southern Ry. Co. v. Bunnell, 138 Ala. 247, 36 South. 380, the witness was not a physician, and the court' stresses the fact that “the plaintiff paid nothing for the remedies, and their value did not enter into the question of damages.” In this case the value of the services of the physician does enter into the question of damages.

14. Assignments 28 and 29: There Avas no error in allowing the physician to testify as to the present condition of the plaintiff, as to the indentation on his head, and as to whether' his headaches resulted from the wound, as these matters are proper to go before the jury in estimating tlie extent of the injury suffered by the plaintiff.

15. Assignment 80: The question to the witness Barclay, and the answer thereto, as to what kind of whistle was blown at the whistling post, according to the opinion of the majority of the court, were properly admitted, though in the opinion of the writer and of Justices Dowdell and Anderson the same should have been excluded, because the witness was not shown to have any knowledge as to what kind of whistle was usually blown as the whistle post, and, at any rate, it was immaterial. The statute simply requires the whistle to be blown or the bell rung before reaching any public road crossing or a regular station; and if the whistle is blown in any particular way, or any special number of times, it is simply a regulation of the business of the railway company for the information of its employes.

16. Assignment 31: The question as to whether the engine was brought back to the place of the accident was immaterial to the issue involved in this case, and should have been excluded.

17. Assignments 32 and 33: The questions to the witness Beard and the ansAvers thereto were properly admitted, and they simply showed the condition of the plaintiff after he received the injury, and the kind of attendance Avhich he required, the cost of which was an element of damage. As to Avhether he seemed to suffer, that also was proper, in accordance with the decisions of this court. — McLendon’s Case, 63 Ala. 266; Burney v. Torrey, 100 Ala. 157, 174, 14 South. 685, 46 Am. St. Rep. 33; Burton v. State, 107 Ala. 108, 126, 18 South. 284.

18. Assignment 34: There was no error in the refusal by the court to allow the witness Weaver to be questioned as to what efforts he had made, to find the fireman. He had already testified that fie did not know where he was, and it was immaterial whether the witness had or had not made any effort to find ont where he was. No inference could be drawn against the defendant for not producing him, at any rate. — Mann v. State, 134 Ala. 1, 20, 32 South. 704.

19. Assignment 35: The error in allowing the witness Weaver to testify as to whether the fireman was subject to discharge if he failed to ring the bell was without injury, as the witness did not answer the question, but merely said, “It was his duty.”

20. Assignments 36 and 44: The court erred in overruling the objections to the questions to the witness Mc-Clerkin with regard to his statement to John Hobbs. It is not competent to examine a witness on immaterial matter for the purpose of impeaching him. It cannot be said that the defendant opened the door for the introduction of this evidence by bringing out evidence in the examination in chief to which this would be a rebuttal, for all that was said in the examination in chief was that the witness at the time of the trial knew Hobbs. -

21. Assignments 37, 38, 39, and 40: While it is the duty of the court to protect the witness and to insist on his being treated with the proper respect by counsel, yet in view of the latitude allowed in cross-examination, and of the fact that the demeanor of the witness is before the court, much must be left to the discretion of the court; and, Avhile this court does not wish to be understood as approving the character of examination as shown by the record under these assignments, yet Ave cannot say that the court erred in allOAving the questions. — In re Carmichael, 36 Ala. 514, 524.

22. Assignments 41, 42, 46, 47, 48, 49, 49 1-2, and 50 : The court erred in allowing several of the questions to the witnesses, for the purpose of sustaining the character of the witness Dickinson. In addition to the fact that the questions were not in proper form, as they asked, as to his “character,” in place of his “general character,”-; one was objectionable because it asked of the witness whether he ‘‘thought” the character of Dickinson was good or bad. — 30 Am. & Eng. Ency. Law, pp. 1076, 1077; McClellan v. State, 117 Ala. 140, 145, 23 South. 653.

23. With regard to the questions seeking to sustain, the witness Hallman, the court properly excluded them, partly for the reasons last mentioned, and for the. further reason that said witness had not been impeached., The mere fact that two witnesses differ In their state'-, ments as to any fact does not tend to impeach either. — - Owens v. White, 28 Ala. 473; Birmingham Ry., etc., Co. v. Ellard, 135 Ala. 433, 450, 33 South. 276.

24. There was no error in allowing the. questions to, Dr. Bishop referred to in assignments 43 and 45.

25. Charge 5, given on request of the plaintiff, was, probably misleading, and not altogether Avarranted by, the facts in this case; but if the defendant had desired, an explanation, or any other charge to relieve its' misleading tendency, he could have asked for other charges. Consequently the court cannot be placed in error forgiving it.

26. There was no error in giving charge 6, requested by plaintiff.

27. Charges 9 and 11, requested by plaintiff and given by the court, imposed too high a duty by requiring-the jurv to he. satisfied by a. preponderance of the evidence. — Carter v. Fulgham, 134 Ala. 238, 243, 32 South. 684; Arndt v. City of Cullman, 132 Ala. 541. 552, 31 South. 478, 90 Am. St. Rep. 922.

28. Charges 17 and 22, requested by the defendant, were properly refused, because they exacted too high a degree of proof, inasmuch as they required the jury to he “convinced,” in place of being “reasonably satisfied.”— So. Ry. Co. v. Riddle, 126 Ala. 244, 247, 28 South. 422; Moore v. Heineke, 119 Ala. 627, 639, 24 South. 374; Torrey v. Burney, 113 Ala. 496, 504, 21 South. 348.

29. The court erred in refusing to give charge 33, requested by the defendant, which asserts a correct principle of law. This charge is not identical with charge 34, given on the request of defendant. The defendant had a right to have the charge hypothesized on the facts.

30. Charge 36, requested by the defendant, was properly refused. As to whether or not the plaintiff was guilty of contributory negligence would depend upon facts as to which there is conflict in the evidence.

31. The court properly refused to give charge 49, requested by the defendant. It was misleading and confusing. There was no error in the refusal to give the general charge in favor of the defendant, particularly as the evidence afforded a presumption that the fireman may have seen the plaintiff when his horses were running and neglected to use the means to check or stop the train. As the result of what has been said is that the case must be reversed, and application for a rehearing is denied, and the judgment of the court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Haalson, Denson, and McClellan, JJ., concur. Dowdell, Simpson, and Anderson, JJ., dissent in part.