Alabama G.S.R. Co. v. Hill

• Decision Date: 24 June 1891
• Citation: 9 So. 722,93 Ala. 514
• Parties: ALABAMA G. S. R. CO. v. HILL.
• Court: Alabama Supreme Court

9 So. 722

93 Ala. 514

ALABAMA G. S. R. CO. v. HILL.

Supreme Court of Alabama

June 24, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by Nollie C. Hill, by next friend, against the Alabama Great Southern Railroad Company, for personal injuries sustained by plaintiff, caused by derailment of a car on which she was a passenger. Judgment for plaintiff, and defendant appeals. For report on former appeal, see 8 South. Rep. 90.

Wood & Wood, for appellant.

E T. Taliaferro and Noble Smithson, for appellee.

MCCLELLAN J.

1. It was determined on the former appeal in this cause that the defendant was entitled to have a physical examination of the plaintiff's person made by disinterested and competent experts to be appointed by the court. The selection of such experts is a matter entirely within the discretion of the trial judge. Neither party has any right, by suggestion motion, or otherwise, to control his discretion in any degree. The court, in making the order for a physical examination, and in designating the experts to execute it, is conserving the interest of neither the defendant nor the plaintiff, but the ends of justice; and when a competent and impartial commission is named, it is a matter of no consequence whatever that the parties, or either of them, preferred and demanded the appointment of other persons. There is no suggestion here that the physicians selected were not in all respects qualified to discharge the duty imposed upon them by the order of the court; and the court's declination to appoint Dr. Battey, at the instance of the defendant, is not a matter which this court will review. Moreover, were this action revisable, we are by no means prepared to say that the fact that Dr. Battey had already formed and expressed an opinion relative to the existence of the injuries laid in the complaint was not ample justification for the court's refusal to appoint him on the commission.

2. Motions to postpone a trial to a later day of the term stand upon the same footing as applications for continuances from term to term, and both are addressed to the unrevisable discretion of the court. De Arman v. State, 77 Ala. 10; Walker v. State, (Ala.) 9 South. Rep. 87; 3 Brick. Dig. pp. 404, 405.

3. This cause was tried in October, 1890, before the passage of the act allowing appeals to this court from "decisions of the city and circuit courts in this state granting or refusing to grant motions for new trials," (Acts 1890-91, p. 779;) and the action of the city court, in denial of the application for a new trial, made by the defendant, cannot be reviewed. Trammell v. Vane, 62 Ala. 301; Tyree v. Parham, 66 Ala. 424; Bedwell v. Bedwell, 77 Ala. 587; Railroad Co. v. Hill, 90 Ala. 71, 8 South. Rep. 90.

4. Damages are claimed in this action for that the plaintiff, a passenger on defendant's train, received, from the derailment of the car in which she was being transported, injuries which produced present and continuing pain and mental anxiety, immediate physical hurts, which are permanent in their character, and are alleged to have seriously impaired her health, and threatened her life. Whether she was injured at all was a point of much controversy in the case. Similarly, each detail and specification of injury was made the subject of severe contestation on the trial. Whether the injuries, if any, were painful, and in what degree; whether she was shocked and prostrated; whether she was subsequently in bad health as a resultant of the injuries she received; whether, and to what extent, her physical condition after the accident was abnormally bad,-were, with other like inquiries, injected into the case by the pleadings, and prosecuted before the jury. We cannot for a moment be in doubt that, as pertinent to these issues, it was entirely competent for the plaintiff to prove that she had always enjoyed good health before and up to the time of the derailment; that her physical organs had theretofore discharged their functions naturally and regularly; the manner in which she was jolted, tossed, and thrown about as the car ran for some distance on the cross-ties, and finally turned over an embankment; that immediately afterwards she "could hardly get up," and was "suffering great pain;" that afterwards she "could never sleep, unless she had some medicine to quiet her;" and that she "had not undertaken since the accident to walk any great distance, and could not walk any great distance;" that "her menstruations had been irregular ever since she was hurt," etc. All this evidence was, in our opinion, clearly admissible as tending to show the fact and extent and character of the injuries which she had sustained. Railroad Co. v. Harris, 67 Ala. 6; Railroad Co. v. Lockhart, 79 Ala. 315; Railroad Co. v. McLendon, 63 Ala. 266; 2 Thomp. Neg. 1256, 1257.

5. The reasons which actuated Dr. Drennen in his omission "to call in some surgeon and remove" the coccyx bone could not, of course, have any bearing upon plaintiff's right of recovery, nor tend to lessen or increase her damages. Nor do we conceive that such reasons could have affected the credibility or value of his testimony as an expert. He testified that the condition of this bone was the cause of much pain to the plaintiff, and that this condition could be cured by its removal by a surgical operation, to which he did not deem himself equal. Add to these facts the concession of what is assumed in the question, that he did not call in a surgeon, etc., and it would seem that, standing alone, they involve a greater tendency to impeach his competency as an expert than any explanation of his failure to take steps for the operation would have done. We cannot assume that the reasons called for by the question would have been of such character as to impugn the intelligence and professional attainments of the witness. Moreover, we know of no basis for a distinction between witnesses of this and other classes, which would take these, when speaking to matters of this kind, out of the general rule against drawing out the reasons which conduced to an act or omission to which they depose. Herring v. Skaggs, 62 Ala. 180.

6. The objection to the testimony of Dr. Drennen, to the effect that plaintiff's injuries were of such character as that child-bearing would be thereby rendered perilous to life, is untenable. It may be that she might never have married, even had she not been injured, or that, marrying, she might have had no desire to bear children, or even that, desiring issue, she might not have had any, as is argued by counsel; but these considerations can exert no influence on the question. It is to be assumed that every physical endowment, function, and capacity is of importance in the life of every man and woman, and that occasion will arise for the exercise of each and all of them; and to that extent to which any function is destroyed, or its discharge rendered painful or perilous by the wrongful infliction of personal injury, is the party complaining entitled to damages. We can, in other words, conceive of no physical injury wrongfully inflicted, whether entailing pain only or disfigurement or incapacity, relative or absolute, to perform any of the functions of life, which may not be made the predicate for compensation in damages. Mayor, etc., v. Lewis, (Ala.) 9 South. Rep. 243.

7. The evidence tended to show that the immediate cause of the derailment from which the injury complained of resulted, was the breaking of a rail as the coach on which the plaintiff was riding passed over it, and also that the rail gave way in consequence in part of the defective condition of the cross-ties under it, and in part of the rail itself being old and worn. Plaintiff was allowed, against defendant's objection, to adduce evidence going to show that other rails and cross-ties along there were also old, worn, rotten, decayed, etc. There was no error in this. It may well have been that other defective rails and cross-ties in the immediate vicinity contributed to the breaking of the particular rail by imparting an irregular motion to the cars, and causing them to bear down with greater weight and force at the point where the track gave way. Moreover, all this evidence was competent as affording a stronger inference that defendant's employes knew of the perilous condition of the track, including that portion constituted of the broken rail and the ties beneath it, than would have been afforded by proof confined to the particular rail and ties. Railroad Co. v. Johnson, 15 Lea, 677.

8. The testimony of the witness Curley that "to the best of my judgment what we called in the 'short quarter,' where the rail was broken out, was on a rotten cross-tie, but I won't be positive," was but the statement of his best recollection about a fact, (that the rail broke on a rotten tie,) as to which he would not speak positively, and was properly received. Head v. Shaver, 9 Ala 791; Wright v. Bolling, 27 Ala. 259; Elliott v. Dyche, 80 Ala. 376.

9. The action of the court in disallowing the question propounded by the defendant to its witness Dr. Gaston, "You have had many cases of obstetrics, have you?" may be justified upon the leading character of the question.

10. The law imposes upon common carriers the duty of exercising the highest degree of care, skill, and diligence in the transportation of passengers, and holds them responsible for the consequences of the slightest negligence resulting in injury to persons sustaining that relation to them. The first paragraph of the general charge to which exception was taken which implies that the law requires "strict diligence" of such carriers, is well within this principle. Searle's Adm'r v. Railway Co., (W. Va.) 9 S.E. Rep. 248; Railroad Co. v. Snider, (Ind.) 20...