Van Tinder v. Birmingham Ry., Light & Power Co.

The trial court committed no reversible error in giving for the defendant charge marked 1, page 9 of the record. It merely excluded a recovery of damages for the condition of the plaintiff's spine not caused by the defendant. If it was misleading, it could have been explained by a countercharge. Moreover, if a bad charge, the giving of same was error without injury, as will be demonstrated in discussing the motion for a new trial.

Charge 2, given for defendant, could have probably been refused as argumentative, but it asserted a truism, and the giving of same was not reversible error.

Charge 3, given for defendant, whether good or bad, was justified under the evidence and defendant's special plea 2, which was unchallenged by the plaintiff, and said charge practically tracks the plea.

Charge 4, given for defendant, did not attempt to invoke contributory negligence, but merely presented and hypothesized the defendant's theory as shown by its evidence. Tannehill v. Birmingham Ry. Co., 177 Ala. 297, 58 So. 198. The plaintiff charged in her complaint that she was injured at a regular place for passengers to get off, and her proof shows that while in the act of getting off the car at a regular stopping place, after the car came to a stop, it was started forward, thereby jerking or throwing her to the ground. The defendant's evidence contradicted this, and showed that the plaintiff alighted from the car while in motion and before it reached her stopping place, and that at the time the said car was being carefully and properly operated. The case of Sweet v. Birmingham Ry. Elec. Co., 136 Ala. 166, 33 So. 886, has no bearing upon this case. The court simply held in that case that, notwithstanding the car did not actually stop, if it was going so slow as to indicate an invitation to alight, it would be negligence to increase the speed without ascertaining that no one was acting upon the invitation. Here this question is not involved, as the plaintiff claims that the car had stopped and then suddenly started before she alighted, and, of course, if this was true, there was negligence on the part of the defendant's servants; but the defendant's evidence disputed this, and claims that the car was coming to a stop and the plaintiff stepped off before it had stopped, and the charge merely hypothesizes the defendant's theory and a proper operation of the car at the time of and immediately preceding the injury.

The plaintiff made a motion for a new trial upon several grounds, but the one now urged is because of newly discovered evidence resulting from an X-ray examination of her back and showing the nature and character of her injury and the probable cause of same. This evidence does not go to the merits of the case, that is, to the establishment of recoverable negligence, but relates exclusively to an element of damages resulting from the injury to the plaintiff's back. One of the essentials, among other requirements for granting a new trial because of newly discovered evidence, is that the evidence, if used, would probably have changed the result. Fries v. Acme Lead Co.,79 So. 45,¹ and cases cited. The jury found for the defendant, and an examination of this record convincingly discloses that said finding must have been based upon the defendant's theory of how the accident occurred, and that the defendant was not guilty of actionable negligence, and not because of the plaintiff's unsatisfactory proof as to the injury to her back, as the proof shows that she sustained other injuries for which substantial damages could have been awarded had the jury believed that the defendant was guilty of negligence. The plaintiff's sister said: "She felt badly and felt shaken up and her arm hurt." The plaintiff said: "It cut my hand right here and on my elbow, and I was bruised about the body a good deal." This evidence was not seriously controverted, and it would be an almost violent presumption to hold that the jury found for the defendant upon the sole and exclusive idea that they were not satisfied that the plaintiff's spine had been injured. The complaint charges and claims for injuries other than to the spine, to wit, "right hand, right elbow," etc., and there was proof in support of same, and it is unreasonable to assume that the jury thought the defendant guilty of actionable negligence, but declined to give plaintiff a verdict because not satisfied that her spine was injured. Had there been a judgment for the plaintiff and a new trial asked for by her because of inadequate damages, it could be contended that this newly discovered evidence would have produced a different result; or had the complaint charged only an injury to the spine, or had there been no proof of any other injury to the plaintiff, it might be said that the jury's verdict was based upon the failure of proof as to the plaintiff's back being injured; but with the complaint setting forth other injuries to plaintiff's body, and her proof establishing same, it would be an unwarranted reflection either upon the intelligence or integrity of the jury to hold that they thought the defendant's servants guilty of negligence, but would not return a verdict for the plaintiff because not satisfied as to the nature and character of only one of the claimed injuries. True, the plaintiff presented with her motion the affidavit of one of the jurors to the effect that he thought the defendant guilty of the negligence charged, but agreed to a verdict in its favor because not satisfied that the plaintiff's back was injured. The acceptance and consideration of this affidavit by the trial judge is forbidden by public policy. City of Eufaula v. Speight, 121 Ala. 613, 25 So. 1009; Clay v. City of Montgomery, 102 Ala. 297, 14 So. 646.

While the action of the trial court in refusing the new trial can well be rested upon the ground discussed above, this newly discovered evidence, that is, the material and vital part of same, was cumulative; the main issue there involved being as to whether or not the nature and condition of the spine existed before the alleged accident or resulted from a recent shock or blow. The plaintiff's expert witness Booth said:

"Miss Van Tinder's spinal curvature could not, according to my experience, be caused by anything else except some sudden fall or knock or something like that, external force of some sort."

This newly discovered evidence, while perhaps more satisfactory and explained more convincingly the condition of the spine, when sifted to its final analysis, went to the establishment of the one material thing, that is, that the condition of the spine was due to an external blow, fall, or shock, and merely corroborated the evidence of Mrs. Booth, who testified upon the trial.

Moreover, we are not persuaded that due diligence was shown in obtaining this X-ray examination. Plaintiff relied, among other things, upon permanent injuries to her spine, and it was but fair to herself, the defendant, and the court that she should have obtained and produced the best evidence on the subject, and the reasons for resorting to an X-ray were as important before as after the trial. It is a matter of common knowledge that in cities the use of the X-ray for the discovery and diagnosis of internal injuries and abnormal conditions of the human body is of common occurrence. True, it may incur some trouble and extra expense, but the trouble and expense should be no greater before than after the trial, and the reasons and necessities for same should be as imperative for the original trial as for upsetting or overturning the verdict of a jury after it has passed upon the issue to which the examination relates and which was contested upon the trial.

The judgment of the circuit court is affirmed.

Affirmed.

MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.

¹ 201 Ala. 613.