Birmingham Railway & Electric Co. v. Wildman

• Decision Date: 08 November 1898
• Citation: 119 Ala. 547,24 So. 548
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RAILWAY & ELECTRIC CO. v. WILDMAN.

24 So. 548

119 Ala. 547

BIRMINGHAM RAILWAY & ELECTRIC CO. v. WILDMAN.

Supreme Court of Alabama

November 8, 1898

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Jasper N. Wildman against the Birmingham Railway &amp Electric Company. Judgment for plaintiff, and defendant appeals. Reversed.

This suit was brought to recover damages for injuries alleged to have been received by the plaintiff while a passenger on one of the defendant's electric cars, and while alighting therefrom at a station on defendant's line, which injuries were alleged to have been caused through the negligence of persons in charge of the cars in suddenly starting while the plaintiff was in the act of alighting from said car. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the jury the following written charges: "(1) It is a duty of the conductor of a street car operated by electricity, when his car has been stopped for passengers to alight, to see and know that no passenger is in the act of alighting, or is otherwise in a position which would be rendered perilous by the motion of the car, when he again puts the car in motion. (2) Plaintiff owed defendant no duty to inform defendant that he had been hurt, before the filing of the suit. (3) Plaintiff's counsel owed defendant no duty to inform defendant that plaintiff had been hurt, before the filing of the suit. (4) Neither plaintiff nor his counsel owed defendant any duty to give defendant any information before the filing of this suit, to enable defendant to get witnesses or gather information." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by it: "(1) I charge you, gentlemen of the jury, that the undisputed evidence does not show that the plaintiff is entitled to recover in this cause. (2) I charge you, gentlemen of the jury, that the defendant's counsel has made no argument to you that it was the duty of the plaintiff to give the defendant information to enable the defendant to make its defense in this cause. (3) In arriving at your verdict in this cause, I charge you, gentlemen of the jury, that, in connection with all the other evidence in this case, you have the right to consider that the plaintiff did not inform the defendant that he had been hurt, before the filing of the complaint, if from the evidence you believe that the plaintiff did not give the defendant such information before the commencement of this suit. (4) In arriving at your verdict in this case, I charge you that, in connection with all the other evidence in this case, you have the right to consider that the plaintiff's counsel did not inform the defendant that the plaintiff had been hurt, before the filing of the plaintiff's complaint, if from the evidence you believe that the plaintiff's counsel did not give the defendant such information before the commencement of this suit." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Walker Porter & Walker, for appellant.

Bowman & Harsh, for appellee.

BRICKELL C.J.

Appellee sued to recover damages for injuries alleged to have been received while a passenger on an electric car operated by appellant, through the negligence of the persons in charge of the car in suddenly starting it while he was in the act of alighting from the front platform. There were no witnesses to the accident, which occurred about 8 o'clock on the evening of September 2, 1896, at East Woodlawn, and plaintiff was the only witness who testified in his behalf. The defendant introduced all the conductors and motormen who operated cars on that route on the evening of September 2d each of whom testified that, if any accident occurred on his car, he did not see it, and had no notice or knowledge concerning it. For the purpose of attacking the bona fides of plaintiff's claim, and showing that, from motives of self-interest, he had purposely withheld from defendant all knowledge of and information concerning the accident defendant's attorney propounded the following questions to plaintiff on cross-examination: "Did you ask them (your lawyers) to come and see the railroad company about it?" "Didn't you tell them (your lawyers) to go and present the matter to the railroad company, and ask them to pay you damages?" "Did you tell them not to sue at once, but to wait a while?" To each of these questions an objection was sustained. The inquiries were not only immaterial and irrelevant, but they also directly called for a disclosure by a client of confidential communications to his attorney. While a party who offers himself as a witness cannot refuse to answer pertinent questions on the ground that he had communicated to his attorney the matters inquired about, yet he cannot be compelled to state whether or not he had communicated certain facts to his attorney, or given him certain instructions. As stated by Mr. Wharton "It is obvious that the guard against the disclosure of such communications by counsel would be a mockery if the client could be compelled to disclose that as to which counsel's lips are sealed. It would be absurd to protect by solemn sanction...