Birmingham Union Ry. Co. v. Hale

• Decision Date: 27 June 1890
• Parties: BIRMINGHAM UNION RY. CO. v. HALE.
• Court: Alabama Supreme Court

8 So. 142

90 Ala. 8

BIRMINGHAM UNION RY. CO. v. HALE.

Supreme Court of Alabama

June 27, 1890

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

This was an action to recover damages for personal injuries received in alighting from a street-car; and was brought by the appellee against the appellant corporation. The accident is alleged in the complaint to have occurred at or near the intersection of Twenty-Sixth street with First avenue in the city of Birmingham. The gravamen of the first count of the complaint is an alleged careless and negligent starting of the car, from which the plaintiff was about to alight, with a jerk "before plaintiff had reasonable time to alight, and get off of said car." The second count is substantially the same as the first, except that it alleges, in addition, that, as she was alighting from said car, her clothing caught on an iron hook which was carelessly and negligently placed in an improper and dangerous place. The testimony for the plaintiff tended to show that, as she was alighting from the said car, the car was started, with a jerk, by the driver, and this threw her forward, and her clothes caught on the hook left in an improper and dangerous place, and she was thereby thrown against the car and from it onto the ground, and was seriously injured. The testimony for the defendant was in direct conflict with the testimony for the plaintiff, and the driver of the car on which the plaintiff was riding testified that she was not thrown from the car, but was helped off by her husband, and he saw no accident happen to her, while she was on the car, or while she was alighting from it. On the examination of one Dr Whaley, the physician who attended the plaintiff, as a witness, he said: "When I first saw her, she was complaining of pain from an injury she said she had received." The defendant moved to exclude the words "an injury she said she had received." The court overruled the motion, and the defendant duly excepted. On the examination of one Hagood as a witness for the defendant after the witness had said that he knew Mrs. Rowland, one of the witnesses in this case for the plaintiff, and knew where she was living at the time, and that he was marshal at the time, the defendant asked him "what kind of a house she was keeping," and also, "I want to ask you if you received any orders from the authorities in reference to her." The defendant's counsel stated that each of these questions was asked for the purpose of impeaching the witness Mrs. Rowland by showing her bad character. But, on objection by the plaintiff, the court refused to allow the questions to be answered, and defendant duly excepted. There were other rulings on the evidence, but it is not necessary to notice them any further. Upon the evidence as adduced, the defendant requested, among others, the following charges in writing, and duly excepted to the court's refusal to give each of them: "(1) That if the jury believe that plaintiff has been contradicted by other witnesses as to material parts of her testimony, such as the point where she got off, and where she again got on, and as to whether or not she was injured in getting off of the car, and as to whether or not she told her doctor that defendant's driver was taking a drink at the time of the accident, such contradictions may raise such a doubt in the minds of the jury as to whether she has told the truth as would authorize them to disregard her testimony. *** (4) That the burden is on the plaintiff to prove that she was injured in getting off of defendant's car by the carelessness of defendant's driver; and, if all the testimony in the case leaves the jury in uncertainty as to whether she was so injured, the jury must find for the defendant. (5) That it was only the duty of defendant's driver to stop his car a reasonable time to allow plaintiff to alight therefrom, and, if he did so, he was using ordinary diligence, and the burden of proving that the car was not so stopped is on the plaintiff." There was judgment for the plaintiff; and the defendant now prosecutes this appeal, and assigns the rulings of the court on the evidence, and the refusal to give the charges requested by it, as error.

Hewitt, Walker & Porter, for appellant.

Bush, Brown & Webb and Taliaferro & Vaughan, for appellee.

CLOPTON J.

The physician who attended the plaintiff was permitted to testify that, when he first saw her, she was complaining of pain from an injury she said she had received. As to statements made to the physician by a party who is the subject of the injury the rule of exclusion extends to declarations as to its cause, or the way in which it occurred, these being regarded as mere narratives of past events, which must be proved by other and independent evidence. But, from the necessity of the case, he may testify to the party's statements as to his symptoms, the locality and character of the pain, and explanation of his bodily condition, made while suffering, and for the purpose of enabling the physician to form an opinion of the nature and extent of the injury. Eckles v. Bates, 26 Ala. 655; Roosa v. Loan Co., 132 Mass. 439; Railroad Co. v. Sutton, 42 Ill. 438. The statements of plaintiff, to which objection was...