Birmingham Railway & Electric Co. v. Franscomb

• Decision Date: 08 February 1900
• Citation: 27 So. 508,124 Ala. 621
• Parties: BIRMINGHAM RAILWAY & ELECTRIC CO. v. FRANSCOMB.
• Court: Alabama Supreme Court

27 So. 508

124 Ala. 621

BIRMINGHAM RAILWAY & ELECTRIC CO. v. FRANSCOMB.

Supreme Court of Alabama

February 8, 1900

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by David Franscomb against the Birmingham Railway & Electric Company. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought by the appellee, David Franscomb, against the Birmingham Railway & Electric Company, to recover damages for injuries alleged to have been inflicted by reason of the negligence of the motorman operating and in charge of one of the defendant's cars. The plaintiff was driving a wagon along Twentieth street, in the city of Birmingham, upon which street the defendant had two tracks, and the car of the defendant collided with the wagon, by reason of which collision the plaintiff was thrown from the wagon, and sustained the injuries complained of. The complaint contained three counts. The first two counts of the complaint charge that the plaintiff was injured by reason of the simple negligence on the part of the motorman who was operating the car at the time of the collision. The third count of the complaint charged that the "motorman negligently carelessly, and wantonly injured the plaintiff by running said street car against the wagon in which the plaintiff was driving." The defendant pleaded the general issue and contributory negligence on the part of the plaintiff. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The court gave the general affirmative charge in favor of the defendant as to the first and second counts of the complaint. The defendant requested the court to give among others, the following written charge, and separately excepted to the court's refusal to give such charge as asked: "If you believe the evidence, you must find for the defendant under the third count of the complaint." 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.

Kerr &amp Haley, for appellee.

DOWDELL J.

Counsel for appellant, in their brief, expressly decline to discuss the second, third, fourth, fifth, and sixth assignments of error, all of which relate to rulings on the evidence, and we will therefore not consider the same, accepting their refusal to discuss these assignments as a waiver of the same.

The first assignment is insisted upon by appellant. The witness Dyer, in speaking of plaintiff's physical condition while in the hospital, stated that "he seemed to be very weak." This was objected to by the defendant, and motion made to exclude the same, which was overruled. This was but an equivalent of the expression that "he appeared to be very weak," and consequently was nothing more than the statement of a fact, or, at most, a conclusion of fact. If the adverse party wished to know the foundation upon which the witness rested his conclusion, the facts could have been drawn out upon a cross-examination. This ruling of the court was without error. South & N. A. R. Co. v. McLendon, 63 Ala. 270; Jenkins v. State, 82 Ala. 25, 2 So. 150; Thornton v. State, 113 Ala. 43, 21 So. 356.

Neither did the court err in excluding, on the motion of appellee, the statement by the witness Vineyard, in regard to the action of the appellee in driving his wagon, that, "I considered that a signal for me to come ahead." This was not the statement of a collective fact, as contended by counsel for appellant, but a statement of a mental operation of the witness,-the opinion or belief of the witness. The proper test was, not what the witness considered as a signal to "come ahead," but whether he had a right to consider the conduct and action of appellee as a signal; and this was a fact for the jury to determine from the other facts in evidence. McCormick v. Joseph, 77 Ala. 236.

The real question involved in this case, as conceded by counsel in argument, is that of wantonness vel non. In behalf of the plaintiff but two witnesses were examined who had any knowledge whatever of the facts which constituted the wantonness as alleged in the third count of the complaint. The...