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

• Decision Date: 14 May 1914
• Docket Number: 699
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. FRIEDMAN.

65 So. 939

187 Ala. 562

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

No. 699

Supreme Court of Alabama

May 14, 1914

Rehearing Denied June 24, 1914

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by Mrs. Sallie Friedman against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The first count states the relation between plaintiff and defendant, the fact that defendant was a common carrier of passengers, and the time and manner of the injury, together with the catalogue of the injuries, and avers that her said injuries were proximately caused by the negligence of defendant in the negligent manner in which it handled or operated said car upon which she was a passenger as aforesaid. The second count adopts all of the first count including the catalogue of injuries, and alleges that plaintiff's injuries were proximately caused by the wantonness of defendant's servants or agent who had charge or control of said car while acting within the line and scope of his authority under his employment by defendant in that he wantonly inflicted upon plaintiff her injuries aforesaid, wherefore she was proximately caused the injuries and made to suffer the damages particularly set out as aforesaid. The facts sufficiently appear from the opinion.

The questions set out in the assignment of errors referred to in the opinion are as follows:

"(3) Q. Have you traveled over it since that time, when the leaves were on the track and they were wet? A. Yes, sir. (4) Same as 3. (5) Q. Have you been over it, just like it was that night? A. Yes, sir. (6) Same as 5. (7 and 8) Q. Come down just like it was? A. Yes, sir. (9 and 10) Q. Never had any trouble? A. No. (11 and 12) Q. Not a bit? A. No. (13 and 14) Q. Had perfect control over it? A. Yes, sir. (15 and 16) Q. Leaves the same way? A. Yes, sir. (17 and 18) Q. Wet, and on the track, in the same condition and the same kind of car? A. Yes, sir. (19 and 20) Q. Equipped the same way? A. Yes sir. (21 and 22) Q. Do you use the appliances the same way? A. Yes, sir. (23 and 24) Q. Worked on the same line, how long after the accident? A. Something like a year. (25 and 26) Q. How long did you continue to work on that line since the accident, since this occurrence? A. About a year. (27) Q When you went up at the end of the line and started to come down, was it your judgment at that time you could come down all right, control the car all right? (28) Q. When the car was at the end of the line and you started down that incline, I will ask you to state whether, at that time, it was your judgment that the appliances you had on the car and the track as you observed it, you thought you could get the car down safely?"

The thirtieth assignment of error is as follows:

The trial court erred in charging the jury orally as follows: Now, gentlemen, in the event you find for the plaintiff under that count, the amount of your finding would be like I said in reference to the mental anguish and physical pain part of the first count of the complaint; it would be simply a question which would be addressed to your sound discretion as reasonable, sensible men, as to how much you think the amount of this punishment should be in the event you find for her under this count of the complaint exercising your judgment as reasonable men.

The following is charge 19 requested by and given for defendant.

(19) The court charges the jury that the awarding of punitive damages is solely within the discretion of the jury, and, if the jury believe from the evidence that punitive damages should not be awarded to plaintiff, then you should not award her such damages.

Tillman, Bradley & Morrow and Frank M. Dominick, both of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

McCLELLAN J.

Mrs. Friedman (appellee) was seriously injured by the derailment and wreck of a street car, operated by defendant (appellant), on which she was a passenger. Her cause of action was set forth in two counts. The first ascribed her injury to simple negligence in the handling or operation of the car on which "she was a passenger as aforesaid." The employment of the words "as aforesaid" is taken by defendant as referring to an anterior description of the quo modo constituting the negligence causing plaintiff's injury, and thereupon invoke the application of the rule expressed and applied in the Parker (156 Ala. 251, 47 So. 138) and Weathers (164 Ala. 24, 51 So. 303) Cases, with the result that that count would be held to be defective on demurrer addressed thereto. Aside from other considerations, it will suffice to say that the words refer to the relation of passenger and carrier thereinbefore described; thus bringing the count under the pertinent doctrine of the Wilcox (61 So. 908) and Jordan (170 Ala. 530, 54 So. 280) Cases. The count was not subject to demurrer.

The second count ascribed the plaintiff's injury to wanton misconduct on the part of the servant of the carrier in charge of the car.

It is manifest that there was evidence tending to support every material averment in each of the counts.

The plaintiff, with others, boarded the car in question near the end of its line, for the purpose of being conveyed into the city's center. From the end of the line the track's grade declined toward the city. The car got beyond the control of the motorman, and with increasing speed finally left the track at a curve and was stopped by the street curb and a tree near its line. As respects the wanton count, the plaintiff's theory, supported by phases of the evidence, was that, though the motorman was just previously (as he went out over the line) advised as to the likelihood that, because of the condition of the track, the car would not be subject to control on its return, he undertook to bring it down; that his information as to his probable inability to control the car proved correct; and that the derailment resulted. It was a jury question whether the essential elements of wantonness characterized the motorman's action on this occasion.

On the cross-examination of the plaintiff, in connection with her treatment by physicians, she was asked this question by counsel for defendant: "You were able to pay him, weren't you, Mrs. Friedman?" Objection was properly sustained to this question. The financial condition of the witness was immaterial to any issue in the case. Davis v. Kornman, 141 Ala. 479, 37 So. 789, 792; Jones on Evi. §§ 159, 161. It called for matters entirely too remote from the issue of the extent of plaintiff's injuries or from the inquiry touching the character and duration of the pain she claimed to have suffered in consequence of her injuries.

A large number of the assignments of error relate to the action of the court in allowing the plaintiff's counsel, on the cross-examination of the motorman who was in charge of the car on the occasion of its...