Louisville & N.R. Co. v. Seale

• Decision Date: 13 April 1911
• Citation: 172 Ala. 480,55 So. 237
• Parties: LOUISVILLE & N. R. CO. v. SEALE.
• Court: Alabama Supreme Court

55 So. 237

172 Ala. 480

LOUISVILLE & N. R. CO. v. SEALE.

Supreme Court of Alabama

April 13, 1911

Rehearing Denied May 5, 1911.

Appeal from Circuit Court, Shelby County; John Pelham, Judge.

Action by Delia Seale, a passenger, against the Louisville &amp Nashville Railroad Company, for damages resulting to her from being carried beyond her destination. Judgment for plaintiff and defendant appeals. Affirmed.

The facts and the exceptions to the admission and rejection of testimony sufficiently appear from the opinion. The following charges were refused to the defendant: (B) "The court charges the jury that if you believe from the evidence that the plaintiff refused to go on to Spring Junction when the conductor offered to take her on to Spring Junction, and if you find that the conductor did offer to take her on to Spring Junction, and, after so refusing to go on to Spring Junction, plaintiff said to conductor, in substance, 'Let me off here, then,' and the train was then stopped, and she voluntarily got off, you must find your verdict for the defendant." (C) "The court charges the jury that if you believe from the evidence that the plaintiff voluntarily left said train after the same had passed Gaines Station, and refused to be carried on to Spring Junction, you should find your verdict in favor of the defendant."

Whitson & Harrison, for appellant.

W. R Oliver and Frank S. White & Sons, for appellee.

SIMPSON J.

This case was before this court at a previous term, and was fully reported. See L. & N. R. R. Co. v. Seale, 160 Ala 584, 49 So. 323.

The testimony on this trial is substantially the same as on the former trial, except that on this trial the plaintiff testifies that, when she made the motion with her hand to the conductor, he was looking at her. It is true that she stated that at the time when the conductor came into the car and was talking with the lady the train had already passed Dean's Station, but there is a conflict on this point, the testimony of the conductor and the boy who was behind him tending to show that this was just before the train reached Dean's Station.

From a re-reading of the entire testimony, the court holds that it was for the jury to determine whether or not there was negligence on the part of the conductor in not ascertaining that there was a passenger for Dean's Station, and also whether or not the plaintiff was guilty of contributory negligence in not informing the conductor or flagman that she wished to get off at Dean's Station. Consequently there was no error in the refusal of the court to give the general charge in favor of the defendant. We do not deem it necessary to examine in detail all of the exceptions taken on minor points.

We have shown above that the evidence is not without conflict on one point, and we may say generally that the questions as to the condition of the ground between the place where the plaintiff got off the train and her home were properly admitted as tending to show the probable result of having to get off where she did and walk to her home. Several of the questions asked and objected to were not answered. As to others, the objection was not made until after the question was answered; and, as to others, the objections were general, without specifying any grounds. On the whole, we discover no reversible error.

If there was a variance between the complaint and the evidence as to when the plaintiff told the conductor of her infirm condition, that went only to the amount of the recovery, and not to the right of action, so that it did not justify the giving of the general charge requested by the defendant. The cases of Louisville & Nashville Railroad Co. v. Landers, 135 Ala. 505, 33 So. 482, and Central of Georgia Railway Co. v. Barnett, 151 Ala. 407, 44 So. 392, have no application to the opinion of an expert physician as to the cause of the injury to his patient, and the physician in this case did not testify as to the quantum of the damages.

The questions as to how a conductor would know that he had a passenger for Dean's do not infringe upon the point in the Perkins Case, 165 Ala. 471, 51 So. 871, and others, as to testifying to the cognitions of another, but merely go to a statement as to the facts--what means of knowledge he had; while the question to Mrs. Wood, "Your sister knew," etc., was, and properly, excluded.

The defendant excepted to that portion of the oral charge of the court as follows: "The plaintiff's contention is that the conductor did not use reasonable diligence in taking up tickets; that after he came into the coach he stopped and conversed with a lady an unnecessary length of time; and that while he was doing this she beckoned to him to let him know that she was going past her destination, and that he paid no attention to her, but continued to converse with the lady. If you...