Birmingham Elec. Co. v. Walden, 6 Div. 334.

CourtAlabama Court of Appeals
Writing for the CourtCARR, Judge.
Citation31 So.2d 762,33 Ala.App. 211
Docket Number6 Div. 334.
Decision Date30 June 1947
PartiesBIRMINGHAM ELECTRIC CO. v. WALDEN.

31 So.2d 762

33 Ala.App. 211

BIRMINGHAM ELECTRIC CO.
v.
WALDEN.

6 Div. 334.

Alabama Court of Appeals

June 30, 1947


Rehearing Denied Sept. 2, 1947. [31 So.2d 763]

[33 Ala.App. 212] Lange, Simpson, Robinson & Somerville, of Birmingham, for appellant.

[33 Ala.App. 213] Lipscomb & Lipscomb, of Bessemer, and Earl McBee, of Birmingham, for appellee.

[33 Ala.App. 212] Assignment of error 10 is as follows: 'The court below erred in sustaining appellee's objection, to which the appellant duly excepted, to the question asked by the attorney for the appellant of the witness Dr. J. R. Pow: 'Q. How long had you treated her, actually been seeing her for the first accident?''.

The following charge was refused to defendant: '20. If you believe the evidence in this case, you cannot award the plaintiff any damages for any injury which she may have sustained by reason of her injuries and damages resulting from the accident of February 8, 1944.'

CARR, Judge.

This appeal is from a judgment in the court below in favor of the plaintiff there. The action is by a passenger against a carrier [33 Ala.App. 214] for damages resulting from personal injuries alleged to have been proximately caused by the negligence of the defendant's agent or servant in charge of the operation of a street car.

Assignment of Error No. 2

It is contended here that the court erred in denying the motion for a new trial on the ground the verdict was excessive. The amount of the award was $750.00.

This is not a novel presentment to our appellate courts. However, each case is different and must stand alone on its peculiar facts. To collate the authorities would lend little light, and this is more [31 So.2d 764] aptly true when the amount of damages is to be based on and determined by injuries that are in their nature personal with the various elements concomitant thereto. In such cases the sum to be awarded is largely discretionary with the jury. It is, of course, difficult for the court to fix the compensation upon any legal standard of measurement. Luquire Funeral Homes Ins. Co. v. Turner, 235 Ala. 305, 178 So. 536; Powell v. Bingham, 29 Ala.App. 248, 196 So. 154; Birmingham Ry., L. & P. Co. v. Coleman, 181 Ala. 478, 61 So. 890.

In the case at bar appellee claims, also, for loss of wages. In relation thereto, she included in her testimony time she actually lost from her job and also an amount resultant from a decrease in compensation due to her inability to fully perform her customary duties when she resumed her employment after her injury.

Her fall in the street car was due either to a sudden start or an abrupt checking of the forward progress of the car. However, at the time she had just deposited her fare and was proceeding toward a seat. She had in her arms her grandson, a child about one year old.

The appellee enumerated her personal injuries as follows: Skinned place on leg which 'bled a lot'; 'My elbow was skinned and this hand turned black, just as black, and it swelled up in just a minute'; hip was discolored and 'was bruised and turned black'; wrist was hurt and was bandaged by physician. She stated, also, that she suffered very much on account of these injuries and that the doctor gave her hypodermics to relieve her pains. She claimed that the hurt to the wrist continued to give her pain to the time of the trial. She testified that the doctor came to attend her 'every day the first week and the next week every other day.'

It is true that the attending physician, who testified in appellant's behalf, did not regard appellee's injuries to be very serious, and from his testimony it can be inferred that the plaintiff was not injured as severely as she contended. Of course, this was a matter which addressed itself to the jury and trial court.

Appellant relies primarily on the case of Birmingham Electric Co. v. Bailey, 31 Ala.App. 275, 15 So.2d 465, and insists that by analogy and comparison we should here hold on its authority that the verdict is excessive. It appears to us that counsel overlooks an influencing principle of review. It may be conceded that the sustained injuries in the Bailey case were greater and more serious than those to the plaintiff in the instant case. However, the only question presented in this aspect in the Bailey case was whether or not the damages awarded were excessive. We held that they were not. This is not equivalent to a declaration and adjudication that the amount was adequate, since the determination of its inadequacy vel non was not before the court.

We have briefly delineated a description of the claimed injuries. From them the conclusion is clearly evinced that we should not disturb the judgment of the trial court in his action in sustaining the verdict of the jury. The following authorities lend support to our view. Mobile Light & R. Co. v. Gallasch, 210 Ala. 219, 97 So. 733; Sloss Sheffield Steel & Iron Co. v. Willingham, 243 Ala. 352, 10 So.2d 19; Birmingham Electric Co. v. Cochran, 242 Ala. 673, 8 So.2d 171; Western Steel Car & Foundry Co. v. Bean, 163 Ala. 255, 50 So. 1012; Brasfield v. Hood, 221 Ala. 240, 128 So. 433; Montgomery City Lines v. Hawes, 31 Ala.App. 564, 20 So.2d 536; City of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243; City of Birmingham v. Young, 246 Ala. 650, 22 So.2d 169.

[33 Ala.App. 215] Assignment of Error No. 3

We are here called upon to review the action of the court below in refusing to appellant written charge numbered 20.

It appears from the evidence that the appellee sustained an injury to her back on February 8th, 1944, several months prior to the occasion of instant concern. This was brought into the record over the objections of the plaintiff. It was the privilege of the jury to have all facts relating to the physical condition of the appellee at the time of her injury which forms the basis of the present suit. The charge, [31 So.2d 765] therefore, was invasive of their province. 15 Am.Jur., Damages, Sec. 80, at page 488; Anderson v. Timberlake, 114 Ala. 377, 22 So. 431, 62 Am.St.Rep. 105; St. Louis & S. F. R. Co. v. Savage, 163 Ala. 55, 50 So. 113.

Assignment of Error No. 10

Appellant's counsel asked the physician this question: 'How long had you treated her, actually been seeing her for the first accident?' Before the court ruled on the objection, the witness answered: 'I told you I dismissed her on the 24th.'

It is not clear from the record whether the doctor was here referring to the first or second accident. However, there was no attempt to clarify the matter and make the record disclose what was, in fact, the true intendment. Under these conditions we must hold that prejudicial error is not apparent, and that the answer to the question freed the subsequent ruling of the court of any odium to appellant.

We think that the ruling of the court cannot be infested with error for another reason. When the plaintiff had completed her...

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7 practice notes
  • OPINION OF THE JUSTICES
    • United States
    • Supreme Court of Alabama
    • 24 Abril 2001
    ..."`If merit or skill play any part in determining the distribution, there is no lottery.'" 692 So.2d at 111, quoting 249 Ala. at 525, 31 So.2d at 762 (Livingston, J., writing specially and quoting an American Jurisprudence annotation). These statements appear to imply that a game for conside......
  • Opinion of the Justices, 83.
    • United States
    • Supreme Court of Alabama
    • 8 Septiembre 1947
    ...I have no facts before me that show how such wagering is accomplished and there are no facts in the majority opinion bearing thereon. [31 So.2d 762.] SIMPSON, Justice. I concur in the foregoing opinion of Justice LAWSON. LIVINGSTON, Justice. Because of the factual elements involved I seriou......
  • Butler v. Walton, 8 Div. 904
    • United States
    • Alabama Court of Appeals
    • 30 Octubre 1951
    ...348, 13 So.2d 294. Assignments 17 and 18 were not insisted upon in argument and are not here treated. Birmingham Electric Co. v. Walden, 33 Ala.App. 211, 31 So.2d 762; Rules of Practice in Supreme Court, rule 10, Code 1940, Title 7 Assignment of error 20 is based on the court's action in gi......
  • Opinion of the Justices, No. 358
    • United States
    • Supreme Court of Alabama
    • 8 Abril 1997
    ...of a subsequent event, incapable of ascertainment or accomplishment by means of human foresight or ingenuity.' " 249 Ala. at 525, 31 So.2d at 762 (quoting an American Jurisprudence annotation (emphasis added)). " 'If merit or skill play any part in determining the distribution,' " he contin......
  • Request a trial to view additional results
7 cases
  • OPINION OF THE JUSTICES
    • United States
    • Supreme Court of Alabama
    • 24 Abril 2001
    ..."`If merit or skill play any part in determining the distribution, there is no lottery.'" 692 So.2d at 111, quoting 249 Ala. at 525, 31 So.2d at 762 (Livingston, J., writing specially and quoting an American Jurisprudence annotation). These statements appear to imply that a game for conside......
  • Opinion of the Justices, 83.
    • United States
    • Supreme Court of Alabama
    • 8 Septiembre 1947
    ...I have no facts before me that show how such wagering is accomplished and there are no facts in the majority opinion bearing thereon. [31 So.2d 762.] SIMPSON, Justice. I concur in the foregoing opinion of Justice LAWSON. LIVINGSTON, Justice. Because of the factual elements involved I seriou......
  • Butler v. Walton, 8 Div. 904
    • United States
    • Alabama Court of Appeals
    • 30 Octubre 1951
    ...348, 13 So.2d 294. Assignments 17 and 18 were not insisted upon in argument and are not here treated. Birmingham Electric Co. v. Walden, 33 Ala.App. 211, 31 So.2d 762; Rules of Practice in Supreme Court, rule 10, Code 1940, Title 7 Assignment of error 20 is based on the court's action in gi......
  • Opinion of the Justices, No. 358
    • United States
    • Supreme Court of Alabama
    • 8 Abril 1997
    ...of a subsequent event, incapable of ascertainment or accomplishment by means of human foresight or ingenuity.' " 249 Ala. at 525, 31 So.2d at 762 (quoting an American Jurisprudence annotation (emphasis added)). " 'If merit or skill play any part in determining the distribution,' " he contin......
  • Request a trial to view additional results

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