Birmingham Railway, Light & Power Co. v. O'Brien , 185 Ala. 617 ( 1914 )

McCLELLAN, J.

Mrs. O’Brien, plaintiff appellee, was seriously injured under the circumstances to be stated. She boarded one of defendant’s (appellant) street ears, in the business district of Birmingham, to go to a home in the residence section of that city. She thus became a passenger of the common carrier. Upon arrival at her destination, Thirteenth avenue, she alighted, through the rear platform gate of the street car, on the right-hand side thereof, and turned to cross the track of the carrier a feAV feet behind the car, to go to the home, on the west side of the track, in Avkich she ivas a guest. While she Avas on the track, behind the car, the car was put in motion; a strand of telephone or hay wire, attached to car and variously estimated by the witness to be from 10 to 22 feet in length, caught her foot in a loop at the loose end thereof, and dragged her, according to some of the evidence, about “31 steps,” and to other evidence a much less distance. The place at which she Avas delivered by the carrier and where she alighted as at her destination appears to have been the usual stopping place for the reception and discharge of passengers on that line.

Under the doctrine pronounced and applied in Melton v. B. R. L. & P. Co., 153 Ala. 95, 45 South. 151, 16 L. R. A. (N. S.) 467, it is clear that amended counts 1 and 5, Avhich the report of the appeal will contain, shoAV, by their averments, that the relation of passenger and carrier had not terminated Avhen this injury Avas suffered by Mrs. O’Brien. While the pleader might well have concluded without specifying any negligence proximately productive of the plaintiff’s injury, yet it was undertaken in these counts; and, having done so, the sufficiency of the counts, as well as the self-imposed burden to support the particular negligence averred, Avere subject to the usual rules of pleading and proof-burden applicable to cases where the relation of passenger and carrier is not present. If she sees fit to implead the carrier according to a standard, below that the laAv creates for the protection of those standing in the relation of passenger, and in the same breath shows that the relation existed, we know of no legal objection to the sacrifice thus made.

It is insisted in argument that since these counts rely on simple negligence for a recovery, it was incumbent on the plaintiff to aver a state of fact that would exclude the idea that she was, when injured, a trespasser. It will suffice to say that no ground of the demurrer takes this particular point. Prom what we have said it results that ground but contradicted the counts, for they each contained averment of a state of fact that showed the relation of passenger unterminated.

Ground J asserted that a greater duty was exacted by these counts than the law exacted. Manifestly, if this ground is interpreted as other than a general ground of demurrer, it was opposed to averments of the counts. There is no ground of demurrer questioning the sufficiency of the counts in respect of the place whereat plaintiff alighted and was -injured. There is no ground of demurrer objecting to the counts because of indefiniteness in respect of her distance from the car when she crossed the track in its rear. Our statute (Code, § 5340) requires the specification of objections to pleading. General grounds may be overruled without error.

Plaintiff, as the first witness in her behalf, had fully enumerated the character and effects of her injury when Dr. Davis, who had treated her five weeks, was examined. ITe was asked, by plaintiff’s counsel, this question: “And from the nature of her injury and her age (shown in the previous evidence to be over 60 years) and the symptoms as related by her, I will ask you what about her condition at the present time?” The only plausible argument for error in overruling objections to the question is that rested on the grounds that the question was not based on all the facts in evidence, or on the facts in evidence. The witness had testified that he had examined the plaintiff a short time before the trial, and that she had related to him her symptoms. The plaintiff had testified to her symptoms, and the doctor had; himself already testified to her statement to him about, her difficulty in going up and down stairs. We cannot, as indeed the court below could not, say that the symptoms related to the doctor and referred to in the question were not the identical symptoms to which the plaintiff had previously testified, and, if so, there could be no cause for defendant’s complaint. The point counsel doubtless had in mind when the stated objections were interposed could have been readily made available on the cross-examination of Dr. Davis. It could not be the office of an objection to a question to an expert witness to assert the presence of factors not in evidence as importing infirmity into the question, nor of an objection to deny that the question propounded was deficient in the facts adverted to in the question.

Furthermore, we do not understand that a question invoking an expert’s opinion must incorporate every fact in evidence. The examiner may, Ave apprehend, take his view of the facts as a proper basis for his question. There Avas no error in allowing the question quoted or in overruling the motion to exclude the answer thereto.

The assignments based on questions propounded to the Avitnesses HoAvard and SAvan are Avithout merit. HoAvard testified that the motorman said nothing when told of the plaintiff’s condition behind the running car. If any statement by the operative had been then made, it would have been a part of the res gestae and patently admissible. The purpose of the question to the witness Swan, whether proper or not, was fully met in other parts of his examination in chief.

Special charge 1 was unhappily worded. In the use of the words “any negligence” it imports a self-contradiction. Evidently, the draftsman of the charge intended its effect to be that no recovery could be predicated of the nonnegligent attachment of the wire to the car. It does not so conclude. However, if this charge had been correctly framed, it would have been, in effect, the general affirmative charge as to amended count 1, and very like the usual form of affirmative charge which the defendant employed in framing charge 6 as to amended count 1. Under amended count 1, to which we referred to in the first of the opinion, the plaintiff assumed the burden of showing that negligence affected the attaching of the wire to the car. There is no evidence tending to support this affirmative averment. It was errer to refuse the general affirmative charge (6) as to amended count 1.

There was no error in the refusal of the other special charges requested by defendant. Several of these charges pretermit consideration of the diligence due from the conductor, after he knew of plaintiff’s peril, to ;promptly exert himself to bring the car to a stop. Others of them conclude to nonliability upon hypothesis that omitted negligence upon the part of either the mo'torman or the conductor. There was evidence tending to show want of due promptness or care by each of them in bringing the car to a stop after plaintiff’s peril was known.

The judgment is reversed, and the cause is remanded.

Reversed jánd remanded.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.