Birmingham & A.R. Co. v. Norris

CourtAlabama Court of Appeals
Writing for the CourtDE GRAFFENRIED, J.
Citation4 Ala.App. 363,59 So. 66
PartiesBIRMINGHAM & A. R. CO. v. NORRIS.
Decision Date07 May 1912

59 So. 66

4 Ala.App. 363

BIRMINGHAM & A. R. CO.
v.
NORRIS.

Court of Appeals of Alabama

May 7, 1912


Appeal from Circuit Court, St. Clair County; John W. Inzer, Judge.

Action by Malissa F. Norris against the Birmingham & Atlantic Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The facts sufficiently appear from the opinion. The following charges were refused the defendant: Affirmative charge as to the first count. (2) "The court charges you, gentlemen of the jury, that if you find from the evidence that plaintiff had entered the car door before she received her alleged injuries, then you cannot find for plaintiff under the allegations in the first count of the complaint." (3) "If you believe from the evidence in this case that at the time of the jolt or break of said car, as shown by the evidence, the plaintiff had reached the platform of said car, and that she was entering the door thereof, then you cannot find for plaintiff under the first count of the complaint."

Knox, Acker, Dixon & Sterne, of Anniston, for appellant.

[4 Ala.App. 365] Harsh, Beddow & Fitts, of Birmingham, for appellee.

DE GRAFFENRIED, J.

The appellee, the plaintiff in the court below, brought an action against appellant, the defendant in the court below, to recover damages for injuries, alleged to have resulted from the negligence of the appellant, and alleged to have been sustained while she was the passenger of appellant and engaged in the act of boarding appellant's coach.

In its first assignment of error the appellant insists that the trial court erred in permitting appellee's counsel to ask her the question, "Do you find yourself more nervous now than before?" and it is insisted that nervousness, or injury to the "nervous system," was not averred in the complaint, and that the testimony to be elicited by said question was incompetent, irrelevant, and immaterial. Appellant's contention is without merit. The court did not err in permitting the question to be propounded to the witness, nor did the court err in permitting the witness to testify that she was more [4 Ala.App. 366] nervous subsequent to the injury, or injuries, than she was prior thereto. The complaint alleges that "plaintiff was greatly shocked in her person, was thrown or caused to fall, her spine, hips, knees, back, feet, legs, hands, elbows, shoulders, and various parts of her body were cut, bruised, mashed, sprained, and otherwise injured. Plaintiff was injured internally, was made sore and sick, was crippled and disfigured, her health and physical stamina were greatly and permanently impaired," etc. Is the nervous system, then, one of the various parts of the body? And, if it was injured, does not the allegation "otherwise injured" cover such injury? If she was "made sick," and such sickness consisted solely of nervousness, or if nervousness was the manifestation in part, or in toto of such sickness, can it yet be said that it was not covered by the averments of the complaint? The allegations of the complaint were very comprehensive and were certainly broad enough and full enough to cover any nervousness the plaintiff may have suffered, if, in fact, she suffered any nervousness, and the court correctly ruled in refusing to exclude any evidence that related to this trouble, or sickness, or disease, it being one alleged under the complaint to have been sustained, or rather it being one embraced under the allegations of the complaint as having been sustained. Birmingham R. L. & P. Co. v. Brown, 150 Ala. 327, 43 So. 342.

At the request of appellee, the court gave to the jury the following written charge: [59 So. 68] "If from all the evidence the jury is reasonably satisfied that the plaintiff was in the act of boarding defendant's train as a passenger thereon, that the conductor of defendant's train had assisted plaintiff upon the platform of said car, and there left her, and that before plaintiff had had time to enter the car, and procure a seat, that defendant's [4 Ala.App. 367] agents who were in control of said car, suddenly caused an engine, or other cars, to negligently, or violently, strike, or press, against the car upon which plaintiff was so assisted by said conductor, and that such violent stroke or pressure of such engine or other cars caused the car upon which plaintiff had so attempted to aboard to so jolt, jerk, or shock as to cause the injuries complained of by plaintiff, then such acts of defendant's agents would be such negligence, as would entitle plaintiff to recover for such injuries as she may have proximately sustained thereby to her person." It is insisted by appellant that the charge is faulty because it authorized a verdict in behalf of appellee upon proof that the engine struck the car violently. And appellant further insists that the engine...

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8 practice notes
  • Birmingham Electric Co. v. Wood, 6 Div. 613.
    • United States
    • Supreme Court of Alabama
    • October 30, 1930
    ...101 So. 808, 809; North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545, 13 So. 18; Birmingham & Atlantic R. Co. v. Norris, 4 Ala. App. 363, 59 So. 66. The ground of the motion for new trial, numbered 51, and made the basis of assignment of error 41, was too general to direct the attention of ......
  • Central of Georgia Ry. Co. v. Mathis
    • United States
    • Alabama Court of Appeals
    • December 18, 1913
    ...Co. v. Miles, 88 Ala. 262, 6 So. 696; Nash & Chat. Ry. Co. v. Casey, 1 Ala.App. 347, 56 So. 28; B. & A.R. Co. v. Norris, 4 Ala.App. 368, 59 So. 66 As was said by the elder McClellan, speaking for our Supreme Court in the case of Birmingham Union Ry. Co. v. Smith, supra: "The law *** imposes......
  • Southern Ry. Co. v. Norwood
    • United States
    • Supreme Court of Alabama
    • February 12, 1914
    ...92 Ala. 291, 9 So. 410, 13 L.R.A. 95, and cases cited; C. of G. Ry. Co. v. McNab, 150 Ala. 332, 43 So. 222; Birmingham R. Co. v. Norris, 4 Ala.App. 363, 59 So. 66; L. & N.R.R. Co. v. Dilburn, 59 So. 438; 6 Cyc. 613, IV. Where the facts are undisputed, what is a reasonable time is sometimes ......
  • Oklahoma Ry. Co. v. Roebuck, No. 33951
    • United States
    • Supreme Court of Oklahoma
    • December 4, 1951
    ...such car, they become passengers within the meaning of the law fixing the status of the parties. B[irmingham] & A. R. Co. v. Norris, 4 Ala.App. 363, 59 So. 66; [North Birmingham] St. Ry. Co. v. Liddicoat, 99 Ala. 545, 13 So. 18; Ala[bama City, G. & A.] R. Co. v. Bates, 149 Ala. 487, 43 So. ......
  • Request a trial to view additional results
8 cases
  • Birmingham Electric Co. v. Wood, 6 Div. 613.
    • United States
    • Supreme Court of Alabama
    • October 30, 1930
    ...101 So. 808, 809; North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545, 13 So. 18; Birmingham & Atlantic R. Co. v. Norris, 4 Ala. App. 363, 59 So. 66. The ground of the motion for new trial, numbered 51, and made the basis of assignment of error 41, was too general to direct the attention of ......
  • Central of Georgia Ry. Co. v. Mathis
    • United States
    • Alabama Court of Appeals
    • December 18, 1913
    ...Co. v. Miles, 88 Ala. 262, 6 So. 696; Nash & Chat. Ry. Co. v. Casey, 1 Ala.App. 347, 56 So. 28; B. & A.R. Co. v. Norris, 4 Ala.App. 368, 59 So. 66 As was said by the elder McClellan, speaking for our Supreme Court in the case of Birmingham Union Ry. Co. v. Smith, supra: "The law *** imposes......
  • Southern Ry. Co. v. Norwood
    • United States
    • Supreme Court of Alabama
    • February 12, 1914
    ...92 Ala. 291, 9 So. 410, 13 L.R.A. 95, and cases cited; C. of G. Ry. Co. v. McNab, 150 Ala. 332, 43 So. 222; Birmingham R. Co. v. Norris, 4 Ala.App. 363, 59 So. 66; L. & N.R.R. Co. v. Dilburn, 59 So. 438; 6 Cyc. 613, IV. Where the facts are undisputed, what is a reasonable time is sometimes ......
  • Oklahoma Ry. Co. v. Roebuck, No. 33951
    • United States
    • Supreme Court of Oklahoma
    • December 4, 1951
    ...such car, they become passengers within the meaning of the law fixing the status of the parties. B[irmingham] & A. R. Co. v. Norris, 4 Ala.App. 363, 59 So. 66; [North Birmingham] St. Ry. Co. v. Liddicoat, 99 Ala. 545, 13 So. 18; Ala[bama City, G. & A.] R. Co. v. Bates, 149 Ala. 487, 43 So. ......
  • Request a trial to view additional results

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