Louisville & Nashville R. R. v. Seale , 172 Ala. 480 ( 1911 )

SIMPSON, J

This case ivas before this court at a previous term, and was fully reported. — See L. & N. R. R. Co. v. Seale, 160 Ala. 584, 49 South. 323.

. The testimony on this trial is substantially the same as on the former trial, except that on this trial the plaintiff testifies that, when she made the motion with her hand to the conductor, he was looking at her. It is true that she stated that at the time when the conductor came into the car and was talking with the lady the train had already passed Dean’s Station, but there is a conflict on this point, the testimony of the conductor and the boy who was behind him tending to show that this was just before the train reached Dean’s Station.

Prom a re-reading of the entire testimony, the court holds that it was for the jury to determine whether or not there was negligence on the part of the conductor in not ascertaining that there was a passenger for D.ean’s Station, and also whether or not the plaintiff was guilty of contributory negligence in not informing the conductor or flagman that she wished to get off at Dean’s Station. Consequently there was no' error in the refusal of the court to give the general charge in favor of the defendant. We do not deem it necessary to examine in detail all of the exceptions taken on minor points.

We have shown above that the evidence is not without conflict on one point, and we may say generally that the questions as to the condition of the ground between the place where the plaintiff got off the train and her home were properly admitted as tending to show the probable result of having to get off where she did and' walk to her home. Several of the- questions asked and objected to were not answered. As to others, the objection was not made until after the question was answered; and,, as to others, the objections were general,, without specifying any grounds. On the whole, we discover.no reversible error..

If there was a variance between the complaint .and the evidence as to when the plaintiff told the conductor of her infirm condition, that went only to the amount of the recovery, and not to the right of action, so that it did not justify the giving of the general charge requested by the defendant. The cases of Louisville & Nashville Railroad Co. v. Landers, 185 Ala. 505, 33 South. 482, and Central of Georgia Railway Oo. v. Barnett, 151 Ala. 407, 44 South. 392, have no application to the opinion of ,an expert physician as to the cause of the injury to his patient, and the physician in this case did not testify as to the quantum of the damages.

The questions as to how a conductor would know that he had a passenger for Dean’s do not infringe upon a point in the Perkins Case, 165 Ala. 471, 51 South. 871, and others, as to testifying to the cognitions of another, but merely go to ,a statement as to the facts —what means of knowledge he had; while the question to Mrs. Wood, “Your sister knew,” etc., did and was properly excluded.

The defendant excepted to that portion of the oral charge of the court as follows: “The plaintiff’s contention is that the conductor did not use reasonable diligence in taking up tickets; that after he came into the coach he stopped and conversed with a lady an unnecessary length of time; and that while he was doing this she beckoned to him to let him know that she was going'past her destination, and that he paid no attention to her, but continued to converse with the lady. If you' should believe that, it would not be reasonable diligence if he stopped to gossip with passengers — that would be negligence. The conductor denies this, and says he did not do it, says one lady passenger asked him a question and he replied to' it, and went on. It is for you to say whether that is true or not.” The court then said to the jury: “Gentlemen, the defendant objects to the statement made to you that if the conductor stopped and talked to the lady for several minutes that would have been negligence. So far as my saying it is negligence, I withdraw that from your consideration. It is for you to say whether that ivas negligence or not.” The defendant made no further exception or objection, but now contends that said “explanation failed to correct that portion of the charge which instructs the jury, among other things, that the plaintiff’s contention was that, while the conductor was conversing with this lady, ‘she beckoned to him to let Mm hnoto that she was going past her destination.’ ” The record does not show that the court’s attention was called to the -objectionable expression to the effect that plaintiff’s beckoning to the conductor was “to- let him know that she was going past her destination.” We think the exception without merit.

There was no error in the refusal to give charges B and 0. They imply an obligation on the plaintiff to go on to Spring Junction. — Ala. Gt. So. R. Co. v. Sellers, 93 Ala, 9, 14, 15, 9 South. 375, 30 Am. St. Rep. 17; Southern Railway Co. v. Melton, 158 Ala. 404, 47 South. 1008; L. & N. R. R. Co. v. Seale, 160 Ala. 584, 49 South. 323.

There being no error in the record, the judgment of the court is affirmed.

Affirmed.

Mayfield and Somerville, JJ., concur.