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

• Decision Date: 30 January 1906
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. MOORE.
• Court: Alabama Supreme Court

42 So. 1024

148 Ala. 115

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

Supreme Court of Alabama

January 30, 1906

On Rehearing, November 15, 1906.

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Ella P. Moore against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This was an action for damages growing out of an injury to the passenger. Most of the facts are stated in the opinion, but for a clearer understanding of the opinion the assignments of error insisted on are here set out. The first five assignments relate to the action of the court in overruling the defendant's demurrers to the several counts of the complaint. The allegations of the complaint and demurrers thereto are sufficiently stated in the opinion. The sixth assignment of error is sufficiently stated in the opinion. The eighth assignment is as follows: "The court below erred in overruling appellant's objection to the following question propounded by the appellee to the witness Dr. Meadows: 'Doctor, what would be your opinion on a statement of facts like this: Say a patient, a lady, was in a street car wreck, in which there was a collision, and she received a nervous shock. She received bruises on her knee and in her stomach. Within a month's time after that she was operated on for appendicitis. After the collision she was nervous, and continued to be nervous up to the present time. She lost weight; fell off say about 12 pounds. Her nervous condition did not rally or improve, and her general health has steadily been less, at a lower grade than before she was in that collision. Coupled to that, the fact that before the collision she was in good health and hadn't had any serious sickness. Would you say, on the facts of that kind that her nervous system had been impaired, either temporarily or permanently, and upon the facts predicated in my question with a lapse of ten months without any improvement in the general nervous condition, lead you to believe as a medical man that the injury to her nervous system might be permanent?' " The tenth assignment of error is based on the refusal of the court to sustain appellant's objection to the following question to the same witness "If there is inflammation in the region of the appendix, would it be dangerous to cut through the peritoneum to the appendix?" The eleventh assignment sufficiently appears. The twelfth assignment is as follows: "The court erred in overruling appellant's objection to the question propounded by appellee to the witness Dr. Schoolar, 'As a physician, how long, in your opinion, would you say the person who has been operated on for appendicitis would have to be careful with themselves?' " The thirteenth and thirtieth are set out in the opinion. It is unnecessary to set out the sixteenth and seventeenth.

Several charges were requested by the appellant and refused by the court. Charges 1 and 2 are the general affirmative charges on the third and fourth counts. Charge 3 is the general affirmative charge. Charge 4 is set out in the opinion, as is charge 5. Charge 6 is as follows: "The burden of proof in this case is on the plaintiff to reasonably satisfy your minds that the injuries alleged to have been received by the plaintiff were the proximate cause of the appendicitis alleged." The other assignments of error sufficiently appear in the opinion.

Weakley, C.J., and Denson, J., dissenting.

Tillman, Grub, Bradley & Morrow, for appellant.

Peyton H. Moore, for appellee.

DENSON J.

This action was brought by Ella P. Moore against the Birmingham Railway, Light & Power Company to recover damages consequent upon personal injuries alleged to have been suffered by the plaintiff, while a passenger on one of defendant's street cars, through the negligent conduct of the defendant while operating said street car. The complaint consists of five counts. Each of them showed that the defendant was a common carrier of passengers, and the plaintiff was a passenger on one of the defendant's cars, when she received the injury; and by this was shown the duty of the defendant to conserve her safety. The duty having been thus shown, the averment of a failure to perform it--of the negligence of the defendant, whereby the injury was caused to the plaintiff--though very general, was sufficient, under an unbroken line of decisions by this court. Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 So. 349; L. & N. R. R. Co. v. Anchors, 114 Ala. 492, 22 So. 279, 62 Am. St. Rep. 116; Western Ry. of Ala. v. Walker, 113 Ala. 267, 22 So. 182; L. & N. R. R. Co. v. Markee, 103 Ala. 160, 15 So. 511, 49 Am. St. Rep. 21; S. & N. R. R. Co. v. Thompson, 62 Ala. 494; L. & N. R. R. Co., v. Jones, 83 Ala. 376, 3 So. 902; Central of Georgia R. R. Co. v. Martin, 138 Ala. 531, 36 So. 426; Southern Ry Co. v. Burgess (Ala Nov. term 1904) 42 So. 35.

There was one ground of demurrer to one or more counts of the complaint to the effect that the place where the injury occurred was not alleged. In this respect the first and third counts of the complaint show that "the defendant was engaged in operating by electric force a street railway as a common carrier of passengers in and upon the streets of Birmingham, in the state of Alabama, and the defendant did then and there so negligently conduct said business," etc. We judicially know that the streets of Birmingham, and all of them, are in Jefferson county, and the averment was sufficient as to place. Chitty on Pleading (1855) p. 394; Jean v. Sandiford, 39 Ala. 317; Armstrong v. Montgomery St. Ry. Co., supra. The second, fourth, and fifth counts point out with particularity the place where the injury occurred in the city of Birmingham.

When the cause was called for trial in the city court, it was made known to the court that the original pleadings in the cause were lost, mislaid, or destroyed, and had not been substituted. On this ground the defendant moved the court to continue the cause. The motion was resisted by the plaintiff, whereupon (as the bill of exceptions states) the court ordered that the record of the original papers might be used upon the trial of the cause in all respects as the original. In making this order it cannot be doubted that the court acted within the letter and the spirit of the statute. Therefore its action is unassailable. Code 1896, §§ 2644, 2645.

The defendant then assigned as another ground for its motion for a continuance that it had filed interrogatories to the plaintiff and the answers thereto were lost, mislaid, or destroyed with the original papers, and that said answers were not matter of record, and defendant could not avail itself of these answers of plaintiff to said interrogatories if it went to trial of the case at the time. In this connection the bill of exceptions recites: "Whereupon the plaintiff submitted a certified copy of plaintiff's answers to defendant's interrogatories, verified by the oath of the plaintiff and the clerk of this court, and asked that the same be filed as a substitute, on the ground that the original had been lost, mislaid, or destroyed. Thereupon the defendant interposed an objection to the substitution of said papers on the ground that notice had not been given by the plaintiff of such contemplated action as required by law. The court overruled said objection, and to the ruling of the court thereon the defendant then and there duly excepted. It is manifest that reversible error cannot be predicated on the action of the court with respect to this matter, for the reason that there is nothing in the record to show that answers to the interrogatories were substituted.

The bill of exceptions, proceeding, states: "Whereupon the defendant objected to going to trial on the ground that one day's notice had not been given by the plaintiff of her intention to file the copy as aforesaid, and the court overruled the objection, and to the ruling of the court thereon the defendant duty excepted." Reversible error cannot be predicated of the court's action in overruling this objection. The record failing to show that the answers were substituted, it was immaterial whether defendant had the day's notice or not.

The case was tried on the plea of the general issue; the trial resulting in a verdict and judgment for the plaintiff in the sum of $3,725. It cannot from the evidence be successfully disputed that the plaintiff, on or about the 11th day of June, 1903, was a passenger on one of defendant's street cars that was being at the time operated by the defendant, through its servants, on the streets of the city of Birmingham, and that the car was allowed to run into a switch, and on the side track leading from the switch, until it collided with a car that was standing on the side track. The fact that the collision was the result of negligence on the part of the defendant's servant or servants seems, so far as the record shows, not to have been controverted. There was no evidence explanatory of the collision. In the absence of such evidence the presumption of negligence arose. G. P. Ry. Co. v. Love, 91 Ala. 432, 8 So. 714, 24 Am. St. Rep. 927; Birmingham Ry., Light & Power Co. v. Bynum, 139 Ala. 389, 36 So. 736.

The extent of the injury suffered by the plaintiff on account of the collision was a subject of serious controversy. The plaintiff contended that in the collision, among other injuries, she received a blow on the lower part of the right side of the abdomen which superinduced "traumatic appendicitis." The evidence without conflict showed that she was a healthy woman up to the time of the collision, had never detected or felt any symptoms of appendicitis up to that time, nor had she received any injury before that time. It further showed that sh...