Birmingham Ry. L. & P. Co. v. Taylor , 152 Ala. 105 ( 1907 )

HARALSON, J.

The first assignment of error is, that the court erred in overruling defendant’s objecthm to Ihe question to Spencer, witness for plaintiff, viz : “At that time (of the injury) state to the jury whether cars were in the habit of stopping just this side of Avenue P on Twentieth street to let passengers off and ouv” Defendant objected to the question because it called Per irrelevant, immaterial and incompetent evidence, and because it was not an inquiry in reference to cars on the line on which plaintiff was injured.

There can be no doubt, but that the question related to the car on which plaintiff was a passenger. The plaintiff claimed that they stopped at Avenue F on Twentieth street, and started while he was in the act of alighting, while the defendant’s contention was, that it did not stop there. The jury could not have been confused or misled by the question; and if the cars had been in the habit of stopping there, the evidence would tend to support plaintiff’s contention. — M. & E. R. Co. v. Stewart, 91 Ala. 422, 8 South. 708.

2. Plaintiff asked his witness, Dr. Davis, “Well, now, the injury about the rib, to what extent was that injured?” The objection of the defendant to the question was, that it called for testimony in regard to a special injury not claimed in the complaint. The allegation of the complaint was, that while he was in the act of alighting, the car moved suddenly forward and threw “plaintiff to the ground and severely injured him internally (rupturing him) and also' injuring him on the body externally, ánd greatly injuring his nervous system,” etc. When the question was propounded, no objection was interposed to it and the witness answered, “Well, a good deal of exosmosis.” Then it was — after the question was answered — that defendant raised his objection to it. It -would seem that the allegations of the complaint were broad enough to cover the injury to the ribs; but even if this were not so, the objection came too late. A party cannot speculate on what an answer to a question will be, and after it comes out, object to it or move to rule out the answer. — Ellis v. State, 105 Ala. 73, 17 South. 119. The same thing is true of the question which immediately followed the one last referred to.

3. The third assignment is, the refusal of the court to charge, “that if the jury believe the evidence they cannot find a verdict for plaintiff under the third count of the complaint.” That count averred that plaintiff’s injuries were caused by “the negligence of defendant’s motorman who was operating said car, in the management and operation thereof.”

The only insistence in argument by defendant’s counsel as to this charge is, “that there was an entire ab-scence of testimony that the defendant operated the railroad or the car alleged.” It occurs to us, that the objection is too technical to be meritorious. The course of the trial, the questions propounded by defendant’s counsel, and the charges asked by defendant, all indicate that the point now raised was not disputed. The ownership and operation of the cars by the defendant company was not raised on the trial, but appears to have been unquestioned. The defendant pleaded not guilty, and contributory negligence of the plaintiff which proximately contributed to his injury.

On this point, the plaintiff, Taylor, was asked “to tell the jury, whether cars, the defendant’s cars, were in the habit of stopping there (at Avenue F) for the purpose of letting passengers on and off?” and he replied, “Yes, sir.” Mr. Glass, for defendant, was asked by its counsel, if he was a motorman on the car on which Mr. Dean was conductor, in January, 1904, when a passenger was hurt on Twentieth street, near Avenue F, and he replied that he was its regular conductor; and Dean, introduced b,> defendant, testified that he was on the car at the time plaintiff was hurt. As stated, the defendant in the course of the trial, seems to proceed on the implied admission, without denying that it was defendant’s car on which plaintiff was a passenger when hurt, and the evidence plainly enough shows it. The court properly refused to give said charge. — McGhee v. Cashin, 130 Ala 568, 30 South. 367.

In the light of the evidence and of the issues made in the case, there was no error in giving charge one requested by plaintiff.

4. The motion for a new trial is based on grounds already passed on above, except that the verdict was contrary to the evidence and was excessive. There was evidence tending to support the verdict, and evidence tending to support the defense. It Avas for the jury to settle the controversy of fact, and, “allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is not sufficient to clearly convince us that it is wrong and unjust.” — Cobb v. Malone, 92 Ala. 631, 9 South. 738.

Considering the injury the evidence shows the plaintiff received, its. character and disabling effects, we cannot say that the verdict for $1,500 was excessive.

Affirmed.

Tyson, O. J., and Simpson and Denson, JJ., concur.