Alabama Power Co. v. Bruce

• Decision Date: 05 April 1923
• Docket Number: 7 Div. 355.
• Citation: 96 So. 346,209 Ala. 423
• Parties: ALABAMA POWER CO. v. BRUCE.
• Court: Alabama Supreme Court

96 So. 346

209 Ala. 423

ALABAMA POWER CO. v. BRUCE.

7 Div. 355.

Supreme Court of Alabama

April 5, 1923

Rehearing Denied May 10, 1923.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action of Mae Bruce, by her next friend, C. F. Bruce, against the Alabama Power Company. From a judgment for plaintiff defendant appeals. Affirmed.

Dortch Allen & Dortch and O. R. Hood, all of Gadsden, for appellant.

Goodhue & Goodhue of Gadsden, for appellee.

MILLER J.

Mae Bruce, a minor, 17 years of age, by her next friend, C. F Bruce, her father, sues the Alabama Power Company, a corporation, for injuries received by her on December 11, 1920, while a passenger on a street car of defendant, caused by a "head-on" collision between it and a freight car of the defendant. There was judgment for the plaintiff on the verdict of a jury in her favor, from which the defendant appeals. The jury based its verdict on count 1 and the general issue to it filed by the defendant.

Count 1 averred the body of plaintiff was bruised, mashed, and crushed, internally injured, various organs in the body were injured, and she was caused to undergo a surgical operation as a result of being thus bruised and mashed, caused by the collision of defendant's cars.

The court, over defendant's objection and exception, permitted plaintiff to prove that "there were 20 to 25 people on the car on the morning of the collision, and they were thrown from their seats, some of them-the ones I saw-and some were caught and pinned down." This was the car in which plaintiff was a passenger at the time she was injured. It was therefore a part of the res gestæ. There was evidence that the collision threw plaintiff from her seat across the aisle, caught her under the car seat, and when the car stopped it jerked her to the door, and she hit the platform at the door, bruising her back and right shoulder, which bruised spots remained on her body for more than four months. The car was considerably damaged, the front of it being knocked off. It was relevant to incidentally show there were other passengers on the car at the time of the accident, and that they were also thrown from their seats and caught or pinned down, as this tended to show the force of the impact, the violence of the collision, and was a part of the res gestæ. The court did not err in permitting it incidentally to go to the jury. L. & N. R. R. Co. v. Mothershed, 121 Ala. 650, headnote 9, 26 So. 10; 6 Michie's Dig. 85, §§ 85, 86.

In September, 1921, plaintiff was operated on for appendicitis, and it was discovered that she was also suffering from an ovarian trouble, and an ovary was removed. The appellee contends the ovarian trouble resulted from the collision; the complaint charging the surgical operation was necessary on account of personal injuries caused by the collision. The physical condition, health, etc., of the plaintiff before and after the collision, up to and including the time of the operation, were placed before the jury. It was appellant's contention that neither the appendicitis nor the ovarian trouble was caused by the collision, but resulted from other causes several months thereafter.

The physician who had made a personal examination of plaintiff about the time of the operation qualified as an expert, and was examined as a witness by defendant. The defendant asked him four hypothetical questions, the second of which included the facts in the first, while the third included the facts in the first and second, and the fourth included all facts in the three previous questions, as well as additional facts as to her health and nervous condition prior to the collision. The court sustained objections to questions 1, 2, and 3, and overruled objections to question 4. Question 4 gave the witness facts concerning her physical condition as to health and nervousness before the collision, as shown by the evidence, and the other three questions did not. Each question sought the witness' opinion and judgment as to whether the injuries received by plaintiff in the collision caused the appendicitis and ovarian trouble. To the fourth question the witness answered:

"I don't think it would. Appendicitis might develop in 30 minutes. *** This was an acute attack, and that acute attack comes on suddenly."

Questions 1, 2, and 3 failed to narrate any of the facts in evidence as to the health, appearance, and nervous condition of plaintiff prior to the collision. This was necessary for witness to fully understand the physical condition of the plaintiff after and prior to the injuries, and therefore material. The evidence showed her health, color, and disclosed she had a good appetite and was not nervous before the injury. For this reason the court did not err in sustaining objections to those questions, and defendant cannot complain at this action of the court as it received, under question 4, which was answered by the witness with permission of the court, the full benefit from questions 1, 2, and 3. There were included in 4, and the answer was favorable to the theory and contention of defendant. 22 C.J. 708, § 796 (b), headnotes 33-35.

The plaintiff, on cross-examination of an expert witness-a doctor-of defendant, propounded a hypothetical question to him, based on the facts introduced in evidence, and sought an opinion of him as to whether the existence of such facts would produce or cause the plaintiff's appendicitis and ovarian condition-to which he replied, "Well, I think it is possible." The court refused to exclude this answer, and in this it did not err. This was on cross-examination of an expert witness of defendant, and the question was relevant and the answer permissible on the cross-examination of an expert witness. Costella v. State, 176 Ala. 1, headnote 3, 58 So. 202.

Mrs. Bruce, mother of plaintiff, testified she heard Dr. Ralls, who operated on plaintiff, tell her husband that plaintiff's condition could have been caused by the wreck. This was hearsay evidence; no predicate had been laid to contradict Dr. Ralls, and the court erred in admitting it in evidence. However, the court afterwards cured the error by excluding this evidence from the consideration of the jury, stating:

"Gentlemen of the jury, you

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