Alabama Great Southern R. Co. v. Bishop, 7 Div. 291

CourtSupreme Court of Alabama
Writing for the CourtSIMPSON; LIVINGSTON; SIMPSON
Citation265 Ala. 118,89 So.2d 738,64 A.L.R.2d 1190
Parties, 64 A.L.R.2d 1190 ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. Burnett Morgan BISHOP.
Docket Number7 Div. 291
Decision Date14 June 1956

Page 738

89 So.2d 738
265 Ala. 118, 64 A.L.R.2d 1190
ALABAMA GREAT SOUTHERN RAILROAD COMPANY
v.
Burnett Morgan BISHOP.
7 Div. 291.
Supreme Court of Alabama.
June 14, 1956.
Rehearing Denied Oct. 4, 1956.

[265 Ala. 119]

Page 740

Lusk, Swann & Burns, Gadsden, for appellant.

Copeland & Copeland and Hawkins & Rhea, Gadsden, and Hare, Winn & Newell, Birmingham, for appellee.

SIMPSON, Justice.

The plaintiff recovered a judgment for personal injuries from which the defendant has appealed. Upon the former appeal of the case it was held that the defendant was entitled to the affirmative charge. Alabama Great So. R. Co. v. Bishop, 259 Ala. 629, 68 So.2d 530.

On the trial below which followed, one count was submitted to the jury charging the defendant with negligently constructing or maintaining a public railroad crossing in allowing a crevice to exist between the tracks and a cross-tie or timber parallel therewith and adjacent thereto. As a proximate consequence thereof the complainant alleged that, while crossing the tracks, plaintiff's foot was caught in the crevice and he was caused to fall, and while his foot was so caught the train ran over it.

On the former appeal, the court upon the evidence there presented, observed, 'It is apparent that the only way and manner in which a person's foot could be accidentally caught in that crevice was what occurred as appellee contends, that is, to fall across the rail so as to push the toe of his shoes straight down. It could not occur to one simply walking or running uprightly across the track unless he should fall * * *.

'We cannot see that it was a fair inference from the facts that the crevice produced a condition dangerous to one walking or running across the track in the observance of ordinary care.' Alabama Great So. R. Co. v. Bishop, supra, 259 Ala. 632, 68 So.2d 533.

In the trial below, an expert witness (whose testimony was not offered on the former trial) testified on behalf of plaintiff. The defendant urges error on the part of the trial court in admitting the opinion evidence of such expert witness. The expert, one Kershaw, testified over defendant's objection that the construction of the crossing in question was not reasonably proper and safe from the standpoint of the safety of a pedestrian at a grade crossing much used by pedestrians; that the absence of any filling in the void creates a hazard in pedestrian, vehicular or animal traffic; that leaving the void unfilled left the crossing not reasonably safe for pedestrians; and that the crossing was not reasonably safe.

The crevice at the crossing in which the plaintiff's foot was caught, the maintenance of which is the only negligence on which the verdict rested, was approximately two inches in width and six inches in depth.

The rule governing admissibility of expert opinion evidence is that such evidence should not be admitted unless it is clear that the jurors themselves are not capable, from want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. It is not admissible on matters of common knowledge. New York Life Ins. Co. v. Jones, 31 Ala.App. 417, 17 So.2d 879, reversed on other grounds 245 Ala. 247, 17 So.2d 883; Crotwell v. Cowan, 236 Ala. 578, 184 So. 195; Capital Motor Lines v. Gillette, 235 [265 Ala. 121] Ala. 157, 177 So. 881; Central of Georgia R. Co. v. Bagley, 173 Ala. 611, 55 So. 894; City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723; McElroy on Evidence, §§ 127, 128, pp. 49-51; 20 Am.Jur., Evidence, §§ 765, 780, 781, 798, 819; 32 C.J.S., Evidence, § 520.

The strict question with regard to this testimony is whether or not an average

Page 741

juror would be capable of forming a correct conclusion in respect to the safeness or unsafeness for persons to walk over a crevice two inches wide and six inches deep in a populous railroad crossing. If this question is answered in the affirmative, the trial court was in error in allowing, over the defendant's objection, the expert to express the aforementioned opinions.

In Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So.2d 89, expert witnesses were permitted to express the opinion that the track at the point where the derailment occurred was in a safe condition for the use to which it was put.

An expert was allowed to express an opinion as to whether or not a ventilation system in a mine was adequate to remove the dust in Tennessee Coal, Iron & R. Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459. In Atlantic Coast Line R. Co. v. Hardwick, 239 Ala. 58, 193 So. 730, the defendant sought to show by an expert the condition of the ventilator lift in question by propounding the following inquiry: 'Was it a support suitable and satisfactory for the purpose for which it was used?' This court held that the expert should have been allowed to express an opinion thereon.

However, the above cases, cited by plaintiff in support of the trial court's ruling, are distinguishable from the case at bar in that the subject matter in respect to which the expert was allowed to give opinion evidence was not one of common knowledge and experience of men. We conclude that the subject here under examination, e. g., a crevice in a crossing (any more than a hole in the sidewalk or street) does not require expert opinion that it would be safe or unsafe for pedestrians for the reason that, given the physical facts, the ordinary mind is capable of forming a judgment thereon. See Alabama Great So. R. Co. v. Baum, 249 Ala. 442, 31 So.2d 366; Capital Motor Lines v. Gillette, supra; New York Life Ins. Co. v. Jones, supra; Downing v. Drybrough, Ky., 249 S.W.2d 711; Burton v. Horn & Hardart Baking Co., 371 Pa. 60, 88 A.2d 873; Ming v. City of Jackson, 202 Miss. 260, 31 So.2d 900; District of Columbia v. Haller, 4 App.D.C. 405; Central of Georgia Ry. Co. v. Bagley, supra; City of Birmingham v. Crane, supra.

For the error in admitting the testimony of Mr. Kershaw as above referred to the judgment must be reversed.

Appellant insists that the affirmative charge should have been given on its behalf. For the purpose of another trial we will write to this point.

Viewing the tendencies of the evidence most favorable to the plaintiff, the material facts and reasonable inferences to be drawn therefrom appear to be as follows: Plaintiff walked up to the public railroad crossing and at a distance of ten to fifteen feet from such crossing he stopped and looked in the northerly and southerly directions, he testified he did not see the train in question. To the plaintiff's left, however, he did see a switch engine at a distance of approximately one hundred feet and coming toward the crossing puffing and blowing and making a 'pretty good noise'; the plaintiff saw a trainman who was walking in front of the switch engine give a signal for the switch engine to back up; the plaintiff also testified that the trainman motioned for him to cross; the switch engine began backing away from the crossing. Plaintiff then proceeded toward the crossing; he did not again look to his...

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46 practice notes
  • International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Hatas, 2 Div. 506
    • United States
    • Supreme Court of Alabama
    • August 5, 1971
    ...spark, the least particle, the smallest trace, a scintilla, in support of the theory of the complaint.--Alabama Gr. Sou. R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190; Alabama Power Co. v. Scholz, 283 Ala. 232, 215 So.2d The defendant Partin was called as a witness by the p......
  • Hca, Inc. v. American Protection Ins. Co.
    • United States
    • Supreme Court of Tennessee
    • January 24, 2005
    ...277 Ala. 157, 168 So.2d 1; Southern Apartments, Inc. v. Emmett, 269 Ala. 584, 114 So.2d 453; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d Lankford v. Mong, 283 Ala. 24, 214 So.2d 301, 302 (1968).3 The substantial evidence rule long applicable in Tennessee......
  • Lankford v. Mong, 7 Div. 707
    • United States
    • Supreme Court of Alabama
    • September 12, 1968
    ...277 Ala. 157, 168 So.2d 1; Southern Apartments, Inc., v. Emmett, 269 Ala. 584, 114 So.2d 453; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d And we have said that when the affirmative charge is refused and the party who requested it appeals, we review the t......
  • Britton v. Doehring, 8 Div. 317
    • United States
    • Supreme Court of Alabama
    • September 17, 1970
    ...the least particle, the smallest trace, a scintilla, in support of the theory of the complaint. Alabama Great Southern Ry. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190. [286 Ala. 502] And we have said that when the affirmative charge is refused and the party who requested the......
  • Request a trial to view additional results
46 cases
  • International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Hatas, 2 Div. 506
    • United States
    • Supreme Court of Alabama
    • August 5, 1971
    ...spark, the least particle, the smallest trace, a scintilla, in support of the theory of the complaint.--Alabama Gr. Sou. R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190; Alabama Power Co. v. Scholz, 283 Ala. 232, 215 So.2d The defendant Partin was called as a witness by the p......
  • Hca, Inc. v. American Protection Ins. Co.
    • United States
    • Supreme Court of Tennessee
    • January 24, 2005
    ...277 Ala. 157, 168 So.2d 1; Southern Apartments, Inc. v. Emmett, 269 Ala. 584, 114 So.2d 453; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d Lankford v. Mong, 283 Ala. 24, 214 So.2d 301, 302 (1968).3 The substantial evidence rule long applicable in Tennessee......
  • Lankford v. Mong, 7 Div. 707
    • United States
    • Supreme Court of Alabama
    • September 12, 1968
    ...277 Ala. 157, 168 So.2d 1; Southern Apartments, Inc., v. Emmett, 269 Ala. 584, 114 So.2d 453; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d And we have said that when the affirmative charge is refused and the party who requested it appeals, we review the t......
  • Britton v. Doehring, 8 Div. 317
    • United States
    • Supreme Court of Alabama
    • September 17, 1970
    ...the least particle, the smallest trace, a scintilla, in support of the theory of the complaint. Alabama Great Southern Ry. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190. [286 Ala. 502] And we have said that when the affirmative charge is refused and the party who requested the......
  • Request a trial to view additional results

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