Atlantic Coast Line R. Co. v. Barganier

• Decision Date: 21 June 1956
• Docket Number: 6 Div. 860
• Citation: Atlantic Coast Line R. Co. v. Barganier, 88 So.2d 823, 264 Ala. 474 (Ala. 1956)
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY v. Calvin F. BARGANIER.
• Court: Alabama Supreme Court

Page 823

88 So.2d 823

264 Ala. 474

ATLANTIC COAST LINE RAILROAD COMPANY v. Calvin F. BARGANIER.

6 Div. 860.

Supreme Court of Alabama.

June 21, 1956.

Graham, Bibb, Wingo & Foster, Birmingham, for appellant.

Taylor, Higgins, Windham & Perdue, Birmingham, for appellee.

SIMPSON, Justice.

Plaintiff recovered a judgment against the defendant in the amount of $65,000 as reduced by the order of the trial court on motion of the defendant for a new trial and acceptance of a remittitur by plaintiff. The defendant brings this appeal. This case, involving a railroad crossing accident, has been tried three times. The judgment appealed from is the third one redered against the defendant.

While we agree with the appellee that there must be an end to litigation, we see no way to avoid a reversal of the case for the errors indicated below.

Among the elements of damages claimed by the plaintiff in his complaint, there was included a claim for impairment of or lessening of the plaintiff's sense of hearing. Upon the trial of the cause, no evidence was presented as to this element. The court, in its oral charge, instructed the jury that the plaintiff had set out in his complaint that his sense of hearing was lessened or impaired; and later in the general charge, in instructing the jury on the measure of damages, stated, 'The law says a jury should award such sum * * * as in their sound discretion would reasonably compensate for any and all injuries and damages including any lost wages * * * any physical pain * * * and any other elements which have been set out in the complaint of a physical nature.' (Emphasis supplied.)

The defendant, in writing, requested that the court instruct the jury as follows:

No. 36--'I charge you gentlemen of the jury that you cannot award any damages to the plaintiff for impairment of hearing.'

No. 40--'I charge you gentlemen of the jury that you cannot award the plaintiff more than nominal damages for impairment of hearing.'

Those charges were refused by the trial court.

Manifestly this was error which 'probably injuriously affected substantial rights' of the defendant. Sup.Ct. Rule 45, Tit. 7, Supp.Code of Alabama, 1940.

In Smith v. Baggett, 1928, 218 Ala. 227, 118 So. 283, the plaintiff sought recovery for personal injuries and property damage. This court held that where there is no proof of personal injury as claimed in the complaint, the lower court properly gave, at defendant's request, an instruction that the plaintiff could not recover for personal injuries.

The almost exact point was considered in Birmingham Railway, Light and Power Company v. Camp, 161 Ala. 456, 49 So. 846, an action for damages against the appellant for injuries to a horse and buggy as a result of a collision of a street car of appellant with the horse and buggy of the appellee. The property injury was the horse, buggy and harness of plaintiff. There was testimony tending to show injury to the harness, but an entire absence of evidence of the extent of damage to the harness. On this state of the evidence the defendant requested a special written charge:

"Under the evidence in this case, you cannot award plaintiff any damages for any injury to or damage to the harness."

The court held that the refusal to give the stated charge was error to reverse since it was incumbent on the plaintiff as a condition to the recovery...