Central of Georgia Ry. Co. v. Grover

• Decision Date: 01 November 1928
• Docket Number: 6 Div. 918
• Parties: CENTRAL OF GEORGIA RY. CO. et al. v. GROVER.
• Court: Alabama Supreme Court

118 So. 506

218 Ala. 290

CENTRAL OF GEORGIA RY. CO. et al. v. GROVER.

6 Div. 918

Supreme Court of Alabama

November 1, 1928

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages for personal injury by Ellen H. Grover against the Central of Georgia Railway Company and Leonard Stewart. From a judgment for plaintiff, defendants appeal. Affirmed.

Nesbit & Sadler, of Birmingham, for appellants.

Altman & Koenig, of Birmingham, for appellee.

SAYRE J.

Appellee had a judgment on account of personal injuries alleged to have been suffered in an accident on appellant's railroad. Plaintiff (appellee) was a passenger.

Defendant brings into question only some rulings of the trial court in administering the adjective law of evidence.

The principal complaint is that the trial court failed to observe the rule, frequently asserted in this court, that the plaintiff in such cases should not be allowed to show that after the accident and injury, the defendant had repaired or changed the machinery or premises--in this case the track--the defective condition of which is alleged to have caused the injury, as tending to show anterior negligence with respect thereto. A number of cases declaring this rule are cited in Gulf, Mobile & Northern R. Co. v Havard, 217 Ala. 639, 117 So. 223. As to the first ruling of which appellant complains in this connection, we find that its contention cannot be sustained, for the reason that the answer complained of was in the end excluded by the court.

Appellant's second exception is based upon that ruling which left with the jury the witness Newberry's answer to plaintiff's question: "Was there any repair work or change in the trackage being done down where you were running that commissary?" at a point said to be a quarter of a mile or more from the scene of the wreck. This was error; but we can hardly think the judgment should be reversed on so immaterial and remote a matter.

Several assignments of error are based upon the admission in evidence of the photographs of the locus in quo shown on pages 93, 99 and 103 of the transcript. These photographs, taken two years after the accident were first admitted, as we read the bill of exceptions, on the theory, apparently, that they served to contradict the testimony of defendant's witness Cummings who, on cross-examination, had testified to the effect that the roadbed at the place of the accident had not been changed. That was not a matter affording proper ground for impeaching or contradicting defendant's witness. But the court had in mind the rule declared by the decisions cited in Gulf, Mobile & Northern R. Co. v. Havard, to which we referred in the outset, ruling that the photographs were not admissible as going to show negligence in the maintenance of defendant's track, and, finally, sustained defendant's objections to each of them. Had they been allowed to remain before the jury for any purpose, we are unable to see that they tended to show more than the fact that defendant, engaged at the time of the accident in a general realignment, and in places relocation, of its track between Birmingham and Columbus, as the evidence showed without dispute, had, in prosecution of that purpose, raised the track at the place of the accident some ten inches, a procedure which had such remote bearing upon the question really at issue between the parties, viz. whether the rail, the breaking of which caused the accident, had broken because insufficiently supported by a rotten tie or two, or because of a latent defect which no inspection could uncover--that issue, we say, was so remotely affected by the evidence in question that the contradiction, which seems doubtful in the bill of exceptions, would not have been...