Bradford v. Birmingham Electric Co., 6 Div. 251.

• Decision Date: 08 June 1933
• Docket Number: 6 Div. 251.
• Citation: 149 So. 729,227 Ala. 285
• Parties: BRADFORD v. BIRMINGHAM ELECTRIC CO.
• Court: Alabama Supreme Court

149 So. 729

227 Ala. 285

BRADFORD v. BIRMINGHAM ELECTRIC CO.

6 Div. 251.

Supreme Court of Alabama

June 8, 1933

Rehearing Denied Sept. 28, 1933.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages for personal injuries by Jane Bradford against the Birmingham Electric Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Walter S. Smith and John W. Altman, both of Birmingham, for appellant.

Lange Simpson & Brantley and Jas. A. Simpson, all of Birmingham for appellee.

KNIGHT Justice.

Suit by plaintiff (appellant) against the Birmingham Electric Company to recover damages for personal injuries alleged to have been sustained by the plaintiff while a passenger upon one of defendant's street cars, operating in the city of Birmingham, Ala.

The plaintiff stated her cause of action in two counts, one counting on simple negligence, and the other charged a wanton wrong.

Before entering upon the trial, the plaintiff filed a motion, which in legal effect, sought to have the court to enter upon a preliminary investigation to ascertain whether or not the attorney for the defendant intended to offer certain testimony with regard to, and touching upon, the life and character of the plaintiff, and to have the court to "inform and admonish the said attorney that, in the trial of the cause, he must not offer or attempt to offer certain testimony, which the plaintiff apprehended he would offer, and which the plaintiff insisted was illegal and incompetent."

The trial court refused to make the order, or to enter upon such an inquiry or investigation, and the plaintiff duly and legally reserved an exception to this ruling of the court.

In appellant's brief, it is stated that "the pivotal question presented by this appeal is the action of the trial court in overruling plaintiff's written motion, in which plaintiff moved the trial court to instruct attorney for defendant to refrain from bringing out illegal testimony."

There is no rule of law or of practice in this state which authorized the procedure called for by plaintiff's said motion. The trial court will not put itself in the position of assuming, in advance of the trial, that an attorney licensed to practice before it will offer illegal or incompetent testimony, nor will it arrogate to itself the prerogative of requiring counsel to inform it as to what evidence he will or will not offer in his client's behalf. Nor will a trial court assume the right, in advance of the offering of any evidence, to "instruct" an attorney what evidence he may introduce on the trial of a cause. Such a procedure, in this jurisdiction, finds no support in any of our adjudged cases. To give judicial sanction to the procedure attempted to be engrafted upon our well-understood and long-established practice in the trial of cases would be wholly unjustified by, and in violation of, all precedent, and an unwarranted usurpation of judicial power and authority. To say more would be supererogation. The trial court properly overruled plaintiff's said motion.

The trial resulted in verdict and judgment for the defendant, and this appeal is by the plaintiff from that judgment.

It appears from the evidence in the cause that the defendant, on the 4th day of January, 1931, owned and operated a street railway in the city of Birmingham, and on that day one of its street cars stopped to take on passengers at or near Avenue C and Nineteenth street, Ensley, in the city of Birmingham, Ala.; that the plaintiff boarded this car as a passenger, intending to ride thereon to her home in or near Fairfield.

The plaintiff's testimony tended to show such a state of facts as to make the case one for the determination of the jury, at least as to the simple negligence count.

The plaintiff's contention was, and is, that the car was started with a sudden jerk before she had an opportunity to get into a seat, and that as a result of this sudden jerk she was caused to fall "prone to the floor," and, in the fall, received and sustained the several injuries catalogued in her complaint. There was evidence tending to sustain this contention.

The defendant's testimony tended to show that plaintiff's injuries were due to a fainting spell, which plaintiff suffered after boarding the car; that there was no sudden jerk of the car, nor any improper handling of the same; that plaintiff's fall and injuries, if any, were due to this fainting spell.

It is insisted that the court committed error to reversal in sustaining defendant's objection to the following question propounded by plaintiff to her witness C. M. Dinsmore: "Now, was there anything-you traveled that line before many times, I believe you said: was there anything unusual in the manner of the operation of that car around the curve you observed?" This question undoubtedly called for the opinion and conclusion of the witness, and the objection thereto was properly sustained by the court. And, besides, this witness was subsequently allowed to state just how the car was moved or operated as it proceeded around the curve.

The defendant called as a witness Y. L. Anthony, chief of police of Fairfield, and, this witness having testified that he was chief of police of Fairfield, and had been for about twenty years, that he had known the plaintiff since February, 1931, that she was then living at Fairfield, that she had been there for some time, and that he got acquainted with her down at her house, 300 Thirty-Seventh street, the witness was then asked by the defendant the following question: "Tell the jury the circumstances" Thereupon the following occurred between counsel for plaintiff and the court:

"Attorney for plaintiff: 'We object to that.'

"The Court: 'On what grounds?'

"Attorney for the plaintiff: 'He said he never saw the woman before February and that is exactly what she said. I think telling the circumstances by this witness calls for illegal, irrelevant, incompetent and immaterial testimony, and a thorough waste of time.'

"The Court: 'You went into it with the lady, didn't you?'

"Attorney for the plaintiff: 'I had to, not because I wanted to. I tried to keep that out even before the jury was called into the case.'

"The Court: 'I will have to overrule the objection."'

To this ruling of the court, plaintiff duly reserved an exception.

The witness then was allowed to answer the question.

Prior to this time, the plaintiff's counsel, on redirect examination of the plaintiff, when on the stand as a witness in her own behalf, had gone fully into the matters as to which this witness referred in his testimony, and it was the plaintiff who first brought out the testimony now complained of, and the...