Bradley v. Lewis

• Decision Date: 15 May 1924
• Docket Number: 6 Div. 137.
• Citation: 211 Ala. 264,100 So. 324
• Parties: BRADLEY ET AL. v. LEWIS.
• Court: Alabama Supreme Court

100 So. 324

211 Ala. 264

BRADLEY ET AL. v. LEWIS.

6 Div. 137.

Supreme Court of Alabama

May 15, 1924

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action for damages by Edith Lewis against Lee C. Bradley and J. S Pevear, co-receivers of the Birmingham Tidewater Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Tillman Bradley & Baldwin, A. Key Foster, and T. A. McFarland, all of Birmingham, for appellants.

Black Harris & Foster, of Birmingham, for appellee.

ANDERSON C.J.

The husband of the plaintiff was asked while a witness:

"What has been her nervous condition since the injury? A. She has been very nervous. You might call her a nervous wreck from it."

Counsel for the defendant moved to exclude "the nervous wreck part." The court overruled the "objection" and noted an exception, though the record does not disclose an exception by counsel. While the court ruled on an "objection" which was not made instead of a "motion" which was made and noted an exception which the record does not affirmatively show was made by counsel, we may concede that the ruling had reference to the motion to exclude and that there was an exception to the ruling. The motion to exclude went only to "The nervous wreck part" of the reply, not to the first or last portion of the answer. It was, of course, error for the witness to have added the words "from it," as that invaded the province of the jury as to the issue in the case; but the motion to exclude stated only "the nervous wreck part," and did not point out this part of the answer, which the trial court would no doubt have excluded, as the record recites that the trial judge did not hear the words "from it" and which were not mentioned or included in the motion to exclude. This, therefore, brings us to the determination of whether or not it was error for not excluding "you might call her a nervous wreck." Witness had just stated "she was very nervous," and we think that the further statement that she might be called a nervous wreck was, in effect, a restatement or emphasis of the first statement and was not a forbidden opinion or conclusion. In fact, to speak of persons who are extremely nervous as a "nervous wreck" is of ordinary or common parlance, indicative of a highly nervous or excitable condition, and we do not think that the trial court erred in failing to sustain the motion to exclude in the form in which it was made.

The trial court cannot be put in error for excluding the report of the car inspectors of June 15th as to the condition of the step. It may be questionable as to whether conditions were so identical when the inspection was made and when...