Central of Georgia Ry. Co. v. Teasley

• Decision Date: 04 June 1914
• Docket Number: 111
• Citation: 187 Ala. 610,65 So. 981
• Parties: CENTRAL OF GEORGIA RY. CO. v. TEASLEY.
• Court: Alabama Supreme Court

65 So. 981

187 Ala. 610

CENTRAL OF GEORGIA RY. CO. v. TEASLEY.

No. 111

Supreme Court of Alabama

June 4, 1914

Rehearing Denied June 24, 1914

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by Charles B. Teasley as administrator of Ellen Benson deceased, against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Steiner Crum & Weil, of Montgomery, for appellant.

Hill Hill, Whiting & Stern and W.T. Seibels, all of Montgomery for appellee.

DE GRAFFENRIED, J.

In the first count of the complaint the plaintiff alleges that his intestate, Ellen Benson, "was a passenger of the defendant on one of its cars in said county at or near Pike Road, Ala., and the defendant then and there so negligently conducted its said business that by reason thereof, and as a proximate result and consequence thereof, the said Ellen Benson received personal injuries, from which she died," etc. In the second count he alleges that his said intestate was a passenger on one of defendant's cars "in said county at or near Pike Road, Ala., and then and there the agent, servant, or employé of the defendant, while acting within the line and scope of his employment, negligently ran or caused to be run with great violence a car or engine upon or against the car upon which plaintiff's said intestate was as aforesaid, and by reason thereof, and as the proximate result and consequence thereof, plaintiff's said intestate received personal injuries which caused her death," etc. In each count of the complaint the time of the alleged injury is fixed as of, to wit, June 29, 1912. To the above two counts the plaintiff pleaded the general issue and contributory negligence. There was a jury and a verdict for the plaintiff, and from the judgment of the court following the verdict the defendant appeals.

(1) We direct attention to the fact that, under a videlicit, the injuries of the plaintiff were fixed in the complaint as having occurred on June 29, 1912. The plaintiff was therefore not held to proof as to the exact day. We also direct attention to the fact that in the second count of the complaint it is alleged that Ellen Benson, while a passenger of the defendant, was injured because a servant or agent of the defendant, acting in the line of his employment, "negligently ran or caused to be run with great violence a car or engine upon or against the car upon which plaintiff's intestate was," etc. We also state that the undisputed evidence showed that the plaintiff's intestate, if injured by the defendant, received her injuries at Pike Road while on a passenger train which was coming to Montgomery on the same day that a passenger train going from Montgomery was derailed near Pike Road, and shortly after the derailed train had been re-railed by the aid of the locomotive which was bringing, and which actually brought, the passenger train on which plaintiff's intestate was a passenger to Montgomery. We deem it appropriate to make the above statements in order that the pith of what is said below may plainly appear.

(2) The first witness introduced by the plaintiff was John J. Cochran. He testified that he was at Pike Road in June, 1912, and was there every day; "that he remembered the occurrence of a train being off the track between Pike Road and Montgomery; that he did not know that he saw any other train that day except the train off the track." The plaintiff's attorney then asked him the following question:

"To the best of your recollection did you see a train run into a car or anything on that day?"

The witness answered:

"I saw a freight train back into another one with a great deal of force, but whether it was that day or not, I do not know."

When the above question was asked there was nothing in its form or in its substance to indicate to the court or to the defendant that it called for irrelevant testimony. The plaintiff had, just before asking this question, called the attention of the witness to these matters which all the parties regarded as of importance in this case, viz., to Pike Road, to the month of June, 1912, and to the derailment of a passenger train near Pike Road. The second count of the complaint alleged that the plaintiff's intestate received her injuries because a servant or agent of the defendant had negligently "run or caused to be run a car or engine upon or against the car" which plaintiff's intestate was occupying as a passenger. This question called for the witness' recollection as to whether he, on that day, saw a car run into another car. The court and counsel for the defendant had a right to presume that in asking the question the plaintiff was referring to the res gestae of the alleged injury, and that the reply of the witness would be germane to the question under investigation. In fact, while the witness, in answering the question, stated that he had seen a "freight train back into another with a great deal of force," he shows by his answer that he had no recollection as to whether this occurred on the particular day or not.

The defendant, in failing to interpose an objection to the above question, as it apparently sought only relevant testimony, was without fault in not objecting to it before the witness answered it, and we do not think that by its failure to so object the defendant subjected itself to the criticism of speculating upon the chances for a response favorable to it. Coppin v. State, 123 Ala. 58, 26 So. 333. "There is some want of harmony in our decisions upon this point, but the true rule seems to us to be that if the question asked seeks to elicit illegal or irrelevant testimony, and the answer is responsive, and the party against whom it is offered makes no objection (to the question before it is answered) this is one of the exceptions to the general rule," and in such a case a motion to exclude such an answer is within the sound discretion of the trial judge, and his action in the premises will not be reviewed on appeal. Coppin v. State, supra.

In the instant case, immediately after the witness had answered the above question, in the language above stated, the defendant moved the court, upon appropriate grounds, to exclude the said answer of the witness from...