Birmingham & A. Ry. Co. v. Campbell

Decision Date17 April 1919
Docket Number7 Div. 927
CourtAlabama Supreme Court

Rehearing Denied June 19, 1919

Appeal from Circuit Court, St. Clair County; O.A. Steele, Judge.

Action by Mrs. K.A. Campbell against the Birmingham & Atlantic Railroad Company for damages for the death of her intestate in a crossing accident. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Most of the questions decided sufficiently appear from the opinion. The following charges were refused to the defendant:

(15) This action is based solely upon alleged negligence of defendant causing the death of plaintiff's intestate, and even though you are satisfied from the evidence that plaintiff's intestate was injured by the defendant or its employés, but that such injury was not the proximate cause of his death, plaintiff cannot recover in this action.
(20) Even though defendant's engineer saw that Mr Campbell was going to step into or against a moving train, it was the legal duty of said engineer to give him any warning to prevent him from so stepping into or against said moving train.
(27) Although defendant's engineer may have known or had cause to know that Mr. Campbell was about to step into or against said train, nevertheless it was not the legal duty of the defendant's engineer to do anything to warn Mr Campbell of his danger.
(37) It is your duty to ascertain from the evidence whether or not defendant was guilty of negligence which resulted in injury to the deceased, and in arriving at your conclusion in this respect you cannot indulge any presumption of negligence on the part of the defendant.
(36) In this case you cannot presume that either the defendant or any of its agents or servants were guilty of negligence subsequent to the discovery of the peril of K.A Campbell.

Knox Acker, Dixon & Sterne, of Anniston, and Gardner Greene and W.A. Starnes, both of Pell City, for appellant.

M.M. & Victor Smith, of Pell City, Riddle & Burt, of Talladega, and Harsh, Harsh & Harsh, of Birmingham, for appellee.


The suit was for personal injury. Several questions are presented for review as to the introduction of evidence.

It having been proven that Mr. Campbell was in good health to the time of his injury, Mrs. Campbell, who had been in constant attendance on her husband from about the time of his injury to that of his death, over defendant's objection, was permitted to testify that during this time he "didn't have any other trouble." This question to Mrs. Campbell tended to show that no other attack or trouble than the injury in question had intervened before the time of his death, and was objected to as a whole on the ground that it called for an expert's conclusion, and it was not shown that she was such an expert.

There is a difference between the ordinary meaning of the words "attack" and "trouble," and the lower court will not be put in error unless both clauses of the question were incompetent. It was certainly competent to inquire if Mr. Campbell was attacked or stricken by other external force during the time intervening between the collision with defendant's engine and his death. As to the use of the word "trouble" by the interrogator and by the witness in her answer, it was made plain that the word did not apply to complications in the nature of physical or mental disability of scientific or medical discernment which may have contributed to or been the sole cause of his death, and the witness explained on cross-examination that she was not a doctor and could not tell about the different diseases, made plain to the jury she had not testified in reference to any disease from which her husband may have been suffering at the time of his injury, but that while she was nursing him, from the time he was brought home unconscious from the injuries in question to the time of his death, she knew of no other "trouble" to have intervened; that he continued to be confined at his home with his injury, and died from whatever affliction from which he was then suffering. This was a shorthand rendition of her faithful watch at the husband's bedside, and of what she had learned through the observation of her senses, and not an opinion by the witness about matters of which only a scientist, physician, or surgeon may speak with intelligence and assurance. Of the facts coming under her observation, perceptible by her senses, she may and did give a proper shorthand rendition thereof. Wilkinson v. Moseley, 30 Ala. 562, 572 (6); Milton v. Rowland, 11 Ala. 732; Dominick v. Randolph, 124 Ala. 557, 562, 563, 27 So. 481; S. & N.A.R. Co. v. McLendon, 63 Ala. 266, 276; 20 Cent.Dig.Ev. § 2228.

Judge Stone says of shorthand rendition of fact in the McLendon Case, supra:

" 'The true line of distinction is this: An inference, necessarily involving certain facts, may be stated without the facts, the inference being an equivalent of a specification of the facts. *** In other words, when the opinion is the mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based.' Whar.Ev. § 510; Raisler v. Springer, 38 Ala. 703, 82 Am.Dec. 736; Avary v. Searcy, 50 Ala. 54."

See Perrine v. Bitulithic Co., 190 Ala. 96, 66 So. 705; Barker v. Coleman, 35 Ala. 221, 225.

The case of Jones v. State, 155 Ala. 1, 46 So. 579, is not to the contrary. Where a nonexpert was asked if in his opinion the pistol shot had caused decedent's death, it was held only a medical expert could draw such conclusion. The instant question and answer was not within the rule that, where an expert's knowledge is essential to the formation of an intelligent opinion, a nonexpert witness may not be allowed to express an opinion as to the cause of a particular physical condition. Sou.Ry. Co. v. Taylor, 148 Ala. 52, 42 So. 625; A.C.C. & I. Co. v. Heald, 154 Ala. 580, 45 So. 686; Woodward Iron Co. v. Spencer, 194 Ala. 285, 69 So. 902; C. of G.R. Co. v. Clements, 2 Ala.App. 520, 57 So. 52. Moreover, while objection and exception was duly made and reserved to the question when propounded, there was no motion to exclude the answer until after her cross-examination, when the motion was to exclude "Mrs. Campbell's statement that Mr. Campbell had no other disease or ailment, on the ground that she was without means of knowing this." Such was not the meaning or legal effect of her answer thus sought to be excluded.

Defendant's evidence tended to show the material facts that due signals were given for the crossing, and that the headlight on the engine was burning at the time of the injury, and plaintiff's evidence was to the contrary. The conductor who was in charge of the train at the time of the injury as a witness for defendant, had testified that the headlight was burning when he left Pell City and when the engine stopped at the crossing after the injury. It is observed that this witness, Heacock, did not testify as to the whistle being blown for the crossing and at regular intervals when the train was proceeding thereto. Other witnesses for defendant had testified that the required signals were given of the trains approaching the crossing in question. Without objection, on cross-examination the witness was permitted to testify:

"The injured man did not say, 'Dock, why did you run over me?' or, 'why didn't you have a headlight?' or, 'why didn't you blow the whistle?' or that in substance."

Thereafter he stated of other signal for the crossing:

"I do not know whether the bell rang or not. I would not have paid any attention."

On recross-examination, without objection, the witness was again permitted to testify:

"On this occasion that I have been asked about, when I came back to where Mr. Campbell was lying in his injured condition, Mr. Campbell did not say to me substantially, 'Dock, why did you run into me?' or 'Dock, why did you strike me, and why didn't you have a headlight, and why didn't you blow the whistle?' "

It is observed that no objection is made to the form of the question or its sufficiency as a predicate on which to introduce other evidence for the purpose of impeachment of the matter or conversation denied by Heacock to have taken place between him and plaintiff's intestate a few minutes after the injury. The plaintiff later introduced as a witness W.M. Woods, who, over defendant's objection and exception that the question called for incompetent, illegal, irrelevant, and hearsay testimony, was permitted by the court to testify:

"I heard Mr. Heacock and the injured man talking a few minutes after the accident."

Plaintiff's counsel asked the witness the question:

"Did or did not the injured man say to Mr. Heacock this, or substantially this, 'Dock, why did you hit me?' or, 'Dock, why did you strike me?' 'Why did you run against me?' 'Why didn't you blow your whistle?' and then Mr. Heacock reply, 'Well, we did blow it at the wye'?"

--to which the witness answered "Yes."

The question and answer were not competent as a part of the res gestae of the injury. Mobile L. & R. Co. v. Portiss, 195 Ala. 320, 70 So. 136. Res gestae is "commonly said to have reference to such circumstances and declarations as are contemporaneous with the main fact under consideration and so closely connected with it as to illustrate its character. 1 Greenl.Ev. § 108. What lapse of time is embraced in the word 'contemporaneous' is often a question of difficulty. Perfect coincidence of time between the declaration and the main fact is not, of course, required. It is enough that the two are substantially contemporaneous; they need not be literally so. The declarations must, however, be so proximate in point of time as to grow out of, elucidate, and explain the character and quality...

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