Birmingham & A. Ry. Co. v. Campbell, 7 Div. 927

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 82 So. 546,203 Ala. 296
• Parties: BIRMINGHAM & A. RY. CO. v. CAMPBELL.
• Docket Number: 7 Div. 927
• Decision Date: 17 April 1919

82 So. 546

203 Ala. 296

BIRMINGHAM & A. RY. CO.
v.
CAMPBELL.

7 Div. 927

Supreme Court of Alabama

April 17, 1919

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.

THOMAS, J.

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 [82 So. 548] 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...