Central of Georgia Railway Co. v. Geopp , 153 Ala. 108 ( 1907 )

ANDERSON, J.

— The bill of exceptions in this case was not signed in time to authorize this court to review the rulings of the lower court upon the trial, but was signed within 30 days after the. judgment upon the motion for a new trial, and therefore, presents for review the action of the trial court in that respect. — Montgomery Traction Co. v. Bozeman, 152 Ala. 145, 44 South. 559; Montgomery Traction Co. v. Haygood, 152 Ala. 142, 44 South. 560.

The complaint in one place charges the injuries as resulting from the negligence of those in charge of one train, and in another place charges negligence to those in charge of both trains. Whether or not the complaint was subject to demurrer we need not decide, as none was interposed. It is sufficient to say it states a cause of action which will support the verdict and judgment. The plaintiff proved a collision and injuries, and this made out a prima facie case of negligence as to the handling and operating of both trains.

It is insisted by the appellant that the trial court erred in refusing charge B, requested by the defendant, and therefore erred in refusing the motion for a new trial because of said error. We do not think the trial court erred in refusing this charge. The complaint would permit a.recovery upon proof of the handling of one train, the one upon which the plaintiff was being-transported. It is contended, however, that there is no proof that this train was negligently handled or operated; that it was stationary, and the other train ran into it. Granting that it Avas stationary, and that it Avas run into or against by the other train, the fact that it was placed or left where the other train struck it, in the absence of proof of negligence upon the part of the crew of the other train alone, proof of the collision Avould make out a prima facie case that it was negligently placed or left there. In other Avords, the proof of the collision made out a prima facie case of negligent injury to the plaintiff, Avho Avas a passenger, and this proof was in no Avay contradicted or overcome by the defendant, who offered no evidence on the subject.

The trial court did uot err in refusing the motion for a new trial, because of newly discovered evidence. If Ratley did not tell the truth, the defendant could have doubtless contradicted him by the exercise of proper diligence. There were a train crew and other passengers, and it is not at all probable that the plaintiff and Ratley were the only two persons who knew anything about the injury. The defendant made no effort at the trial to show a different version of the affair, notwithstanding it had the means to do so, and examined only one witness, who was its surgeon, and only as to the extent of the injury. The testimony of the witnesses whose affidavits are offered as to the physical condition of the plaintiff would not have changed the verdict, as her injuries were proven by several reputable physicians, including its own surgeon.- — Schlaff v. Railway Co., 100 Ala. 377, 14 South. 105. We do not think the defendant showed such diligence in getting its evidence before the court as to entitle.it to a new trial because of newly discovered evidence.

'The judgment of the city court is affirmed.

Affirmed.

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