City of Eufaula v. Speight

• Decision Date: 17 May 1899
• Parties: CITY OF EUFAULA v. SPEIGHT.
• Court: Alabama Supreme Court

25 So. 1009

121 Ala. 613

CITY OF EUFAULA v. SPEIGHT.

Supreme Court of Alabama

May 17, 1899

Appeal from circuit court, Barbour county; J. W. Foster, Judge.

Action by Emma E. Speight against the city of Eufaula. From a judgment entered on a verdict for plaintiff, defendant appeals. Affirmed.

This was an action brought by the appellee, Emma E. Speight against the city of Eufaula, to recover damages for personal injuries sustained by her as the result of alleged defects in a street of the defendant corporation. There was verdict for the plaintiff, assessing her damages at $720.80. Thereupon the defendant moved the court to set aside the verdict, and grant her a new trial, upon the following grounds: "(1) That the verdict is contrary to law; (2) that the verdict is contrary to the evidence; (3) that the verdict is excessive (4) that the defendant has discovered additional and new testimony since the trial, which could not have been discovered by diligence prior to trial; (5) that said verdict was improperly reached." In support of this motion for a new trial, there was filed the affidavit of the defendant's attorney and two other persons, the substance of which is stated in the opinion. The motion for a new trial was overruled, and the defendant duly excepted. There was judgment in favor of the plaintiff in accordance with the verdict. From this judgment the defendant appeals, and assigns as error the overruling of the motion for a new trial.

P. B McKenzie, for appellant.

A. H Merrill, for appellee.

McCLELLAN C.J.

The bill of exceptions does not purport to set out all the evidence; hence we cannot find that the verdict was not supported by the evidence, or was contrary to the evidence. Moreover, the insistence in this connection is based on the supposed contributory negligence of the plaintiff. The defendant did not plead contributory negligence, and there was no such issue in the case.

The fifth ground of the motion for a new trial is, in effect that the jury brought in a quotient verdict. In support of this there is the affidavit of defendant's attorney and two others, in terms direct and positive, that the jury agreed that each one of them should write down on a slip of paper the amount which he thought plaintiff was entitled to recover; that all the slips should be put in a hat together; that they should then be drawn out, and the amounts shown by them added together, and this aggregate...