Birmingham Ry., Light & Power Co. v. Gray

• Decision Date: 20 April 1916
• Docket Number: 6 Div. 312
• Citation: 196 Ala. 42,71 So. 689
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. GRAY.
• Court: Alabama Supreme Court

71 So. 689

196 Ala. 42

BIRMINGHAM RY., LIGHT & POWER CO. v. GRAY.

6 Div. 312

Supreme Court of Alabama

April 20, 1916

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Action by Mrs. Ethel Gray against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act of April 18 1911 (Laws 1911, p. 449) § 6. Affirmed.

Tillman Bradley & Morrow, of Birmingham, for appellant.

Prosch & Prosch, of Birmingham, for appellee.

MAYFIELD J.

Action, by passenger against common carrier, to recover damages on account of personal injuries. The negligence alleged, which went to the jury, was the closing of the gate of the street car upon plaintiff while she was in the act of alighting from the car at the end of her journey; and the sudden jerking or lurching of the car, at that moment, which caused plaintiff to fall and injure herself. There were no pleas of contributory negligence, and the wanton counts were charged out by the court. The jury found for the plaintiff and assessed her damages at $375.

Each of the counts was sufficient in an action by a passenger against a carrier for negligence in causing personal injuries, and they were therefore not subject to the demurrers thereto interposed.

Counts charging simple negligence of a common carrier to the injury of a passenger on one of its cars, which allege that the defendant was a common carrier of passengers, that plaintiff was a passenger, and that it so negligently conducted itself in and about her carriage thereon that at a certain time and place plaintiff was thrown or caused to fall from said car, are sufficient. Birmingham Co. v. Fisher, 173 Ala. 623, 55 So. 995, 7 Mayf.Dig., 101.

There was no error in allowing witnesses to testify that plaintiff complained of her injuries. These expressions of pain, and of the locality, nature, extent, and character of it, are usually admissible evidence. True, the rule allows an opportunity for simulation and the perpetration of fraud; but necessity and justice require it. The reality or simulation of pain as the cause of such expressions is a question for the jury. The rule, however, has limitations. The declarations must be limited to the existence of pain and suffering at the time they are made, and do not extend to rehearsals or narrations of past conditions or sufferings; nor does the rule extend to declarations as to the cause of the pain or suffering. Western Steel Co. v. Bean, 163 Ala. 260, 50 So. 1012; Mayf.Dig., 314. The declarations, if admissible, can be proven by any one who heard them. Id.

It might be error to allow the plaintiff to testify as to what he said or did, on these occasions, indicative of pain. It would be better and more appropriate for him to testify whether or not he suffered pain, than to what he said about it. Id., 163 Ala. 260, 50 So. 1012.

In an...