Birmingham Elec. Co. v. Linn

Decision Date16 March 1948
Docket Number6 Div. 527.
Citation33 Ala.App. 486,34 So.2d 715
PartiesBIRMINGHAM ELECTRIC CO. v. LINN.
CourtAlabama Court of Appeals

Rehearing Denied April 6, 1948.

Lange Simpson, Robinson & Somerville, of Birmingham, for appellant.

Taylor Higgins, Koenig & Windham, of Birmingham, for appellee.

CARR, Judge.

The plaintiff recovered a judgment in the court below for personal injuries.

Without dispute in the evidence she was a pasenger on defendant's street car and while disembarking therefrom she fell.

The prime controverted factual issue is centered around the inquiry of whether or not the floor or tread portion of the step which was used for passenger alighting was in a defective condition.

The only question presented for our review by assignments of error is the action of the trial court in denying appellant's motion for a new trial. The grounds thereof upon which insistence is made are newly discovered evidence and that the verdict was against the great preponderance of the evidence.

Appellate courts look with disfavor and discountenance on motions for a new trial upon the former ground. In such cases the enlightened discretion of the trial court is given consideration, and his judgment will not be disturbed on appeal unless it is clearly and convincingly shown that his discretion was abused. Hodge v. State, 32 Ala.App 283, 26 So.2d 274.

'In order to warrant the granting of a new trial on the ground of newly discovered evidence, it must appear (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative, or impeaching.' 20 R.C.L., Sec. 72, p. 290. See also, Morris v. State, 25 Ala.App. 156, 142 So. 592; Hodge v. State, supra.

We entertain the view that in the instant case there was a failure to meet the requirements of condition number (3), supra. We will, therefore, pretermit a decision on the sufficiency vel non of any of the others indicated.

The trial below proceeded throughout and to its conclusion without any suggestion on the part of the defendant of surprise. There were no legal steps taken or requests made to assure the attendance of additional witnesses. No motion was made for a continuance of the trial, nor was it at any time made known to the court that it was desired that others be summoned to give testimony.

The grounds of the motion are predicated on the alleged newly discovered evidence of eleven different persons, each of whom was at the time employed by the defendant.

The only evidence introduced on the hearing of the motion was the affidavit of each of said parties. The evidence thus presented related in the main to the condition of the street car step and tended to establish that it was not in a defective condition, as the appellee contended.

This insistence is stated in appellant's brief: 'In connection with this assignment of error, we wish to invite the Court's attention to the fact that the plaintiff stated in her answers to the defendant's interrogatories as follows: 'As I attempted to disembark from the street car, I caught my heel in some defect in the step.' This being the only information that was furnished by the plaintiff, in advance of the trial, as to how she received her injuries, it is easy to understand why the defendant did not have available at the trial the new evidence shown by the affidavits which were received in evidence on the hearing of the motion for a new trial.'

The above quoted answer was in reply to this inquiry: 'State in detail how you received your alleged injuries.' If the interrogator was not satisfied with the response and entertained the view that a more detailed description should have been given, recourse could have been had to a motion to require the injured party to make answer more fully. This aside, it appears evident that the answer apprised the appellant that it was the contention of appellee that a defective step caused her fall.

We will not labor this opinion with a further discussion of this matter. We are clear to the conclusion that the movant has not carried the burden of showing due diligence. The following authorities support our view: Fulwider v. Jacob, 221 Ala. 124, 127 So. 818; Gilbreath v. Bain, 212 Ala. 100, 101 So. 762; Davis v. State, 245 Ala. 589, 18 So.2d 282; Dawsey et al. v. Newton, 244 Ala. 661, 15 So.2d 271; Slaughter v. State, 237 Ala. 26, 185 So. 373; McLeod v. Shelby Mfg. & Imp. Co., 108 Ala. 81, 19 So. 326; Girardino v. Birmingham So. R. Co., 179 Ala. 420, 60 So. 871; Fries v. Acme White Lead & Color Works, 201 Ala. 613, 79 So. 45; King v. West End Lumber Co., 21 Ala.App. 242, 107 So. 33; National Life & Accident Ins. Co. Curtin, Ala.App., 29 So.2d 577.

We come now to consider the other ground upon which insistence is made.

As we indicated above, the appellee claimed that her fall and resultant injuries were due to a defective alighting step. In addition to her own testimony, she introduced that of two other witnesses in support of this contention. The effect and purport of this evidence were that the back portion of the floor space of the step was constructed of wood material; that there was a hole or broken place in this part; that appellee caught the heel of her shoe in this hole and fell by reason of this fact.

Appellant tendered the testimony of four witnesses, including the motorman in charge of the street car at the...

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  • Norfolk Southern Ry. Co. v. Johnson
    • United States
    • Alabama Supreme Court
    • March 11, 2011
    ...144 So. 816 [(1932)]; U.S. Cast Iron Pipe & Foundry Co. v. Granger, 172 Ala. 546, 55 So. 244 [(1911)]." Birmingham Elec. Co. v. Linn, 33 Ala. App. 486, 488-89, 34 So. 2d 715, 717 (1948). See also Greater Friendship A.M.E. Church v. Spann, 336 So. 2d 1087 (Ala. 1976); Ex parte Shoaf, 186 Ala......
  • Pacifico v. Jackson
    • United States
    • Alabama Supreme Court
    • February 2, 1990
    ...Car Co. v. Arnold, 223 Ala. 504, 137 So. 288; Fries v. Acme White Lead & Color Works, 201 Ala. 613, 79 So. 45; Birmingham Electric Co. v. Linn, 33 Ala.App. 486, 34 So.2d 715.' Shepherd v. Southern Ry., 288 Ala. 50, 59-60, 256 So.2d 883, 891 (Ala.1970) (quoting from Forest Inv. Corp. v. Comm......
  • Shepherd v. Southern Ry. Co.
    • United States
    • Alabama Supreme Court
    • July 16, 1970
    ...Car Co. v. Arnold, 223 Ala. 504, 137 So. 288; Fries v. Acme White Lead & Color Works, 201 Ala. 613, 79 So. 45; Birmingham Electric Co. v. Linn, 33 Ala.App. 486, 34 So.2d 715.' We deduce from our reading of the record that it was the court's doubt as to Hutto's veracity, as evidenced by the ......
  • Killian v. Webber
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    • Alabama Court of Appeals
    • October 16, 1951
    ...of discretion. Foster v. Rosamond, 28 Ala.App. 99, 180 So. 334, certiorari denied 235 Ala. 663, 180 So. 338; Birmingham Electric Co. v. Linn, 33 Ala.App. 486, 34 So.2d 715; Birmingham Electric Co. v. Toner, 251 Ala. 414, 37 So.2d Wilson was employed by defendant and took the stand twice as ......
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