Mahone v. Birmingham Elec. Co., 6 Div. 538

CourtSupreme Court of Alabama
Writing for the CourtSIMPSON; LIVINGSTON
Citation261 Ala. 132,73 So.2d 378
Decision Date13 May 1954
Docket Number6 Div. 538
PartiesMAHONE v. BIRMINGHAM ELECTRIC CO.

Page 378

73 So.2d 378
261 Ala. 132
MAHONE

v.
BIRMINGHAM ELECTRIC CO.
6 Div. 538.
Supreme Court of Alabama.
May 13, 1954.
Rehearing Denied June 17, 1954.

[261 Ala. 133]

Page 379

Clifford Emond, Birmingham, for appellant.

[261 Ala. 134] Lange, Simpson, Robinson & Somerville and Wm. H. Cole, Birmingham, for appellee.

SIMPSON, Justice.

Appellant sued appellee for personal injuries alleged to have been sustained at a time when appellant, a passenger for hire, was alighting from appellee's bus. Upon the trial below the jury returned a verdict in favor of the defendant and appellant's motion for a new trial having been overruled, he brings this appeal.

In the early stages of the trial certain witnesses for the appellant testified that the bus ran over his hand. The appellant's medical expert, Dr. Nicholson, testified that appellant suffered only a break of the metacarpal bone, i. e., the one proximal to the thumb. Thereupon the following cross-examination of Dr. Nicholson occurred:

'Q. Doctor, assuming a man's hand was on a hard surface or a street, that it came under the rubber tired wheel of a 12,000 pound bus which wheel was moving, would it be your judgment that that would crush a hand to break bones throughout the hand or across the bridge? I guess you call it, of the hand?

'* * * we will assume the hand was flat. A. Well, I would presume that it would cause extensive damage.

'Q. And of course, if it was on its side, I assume that would be a whole [261 Ala. 135] lot more damage, would it not? A. Yes, sir.

'Q. Or if it was in the size (sic) of a fist, there would be more damage? A. Yes, sir.'

The appellant duly objected to the foregoing interrogation of Dr. Nicholson on the ground that the question contained elements of fact not in evidence and argues here that the trial court committed reversible error in overruling the objection. The facts hypothesized and not in evidence were the type of wheel ('rubber tired wheel'), the weight of the bus ('a 12,000 pound bus'), and the position of the hand ('flat,' 'on its side,' 'in the size of a fist').

Page 380

The rule, of course, is that hypothetical questions should not contain elements of fact not shown by the evidence. Southern Ry. Co. v. Simmons, 237 Ala. 246, 186 So. 566; Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837; Zimmern v. Standard Motor Car Co., 205 Ala. 580, 88 So. 743.

When this interrogation of the appellant's medical witness took place the appellant had not testified. Later, however, when the appellant took the stand he testified in substance that the outside of the right wheel of the bus hit his hand, that the whole wheel did not run over his hand, but seemed like it 'thumped' his hand away from the wheel, 'kind of just thumped me, I reckon.' Appellant argues that this hypothetical interrogation tended to create an inference that appellant's hand was injured in some manner other than in coming in contact with the appellee's bus wheel and was therefore prejudicially erroneous. But we cannot agree with learned counsel. On the contrary, the clear inference, indeed, the direct testimony of appellant was that the bus did not run over his hand, that his hand did not come under the wheel of the heavy moving bus. Such latter conclusion is strongly corroborated by Dr. Nicholson's testimony that only one bone was in fact broken, whereas had the bus run over the hand greater injury would necessarily have been done. We are of the opinion, therefore, that the action of the trial court in overruling the appellant's objection to the stated question was harmless and does not warrant a reversal of the case. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

A previously recorded report of an inspection of the vehicle involved in the accident was admitted for the defendant over the objection of the plaintiff. This ruling is assigned as error to reverse. The witness who identified the inspection report did not himself make the inspection and was not present when same was made, but he was the general supervisor of repairs and maintenance. He testified the inspection was made and the record thereof filed in the defendant's regular course of business; that it was the custom and practice of the defendant corporation at the time and for the preceding years to make and keep such a record. Admissibility of the report is to be determined by the provisions of § 415, Title 7, Code 1940, which reads:

'Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof...

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32 practice notes
  • Parker v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 20, 1991
    ...See Bailey v. Tennessee Coal, Iron & Railroad Co., 261 Ala. 526, 530-531, 75 So.2d 117, 120-121 (1954); Mahone v. Birmingham Electric Co., 261 Ala. 132, 135-136, 73 So.2d 378, 380-381 (1954). Any witness who knows the method used in the business of making records of the kind in question and......
  • Liberty Nat. Life Ins. Co. v. Weldon
    • United States
    • Supreme Court of Alabama
    • November 14, 1957
    ...849, 118 A.L.R. 1318; Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474, and cases cited; Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378. That is the rule laid down by this and other courts with some slight variance in the language by which the thought is expressed......
  • Alabama Power Co. v. Guy
    • United States
    • Supreme Court of Alabama
    • November 9, 1967
    ...So. 849, 118 A.L.R. 1318; Louisville & N.R. Co. v. Courson, 234 Ala. 273, 174 So. 474, and cases cited; Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378; Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696, 61 A.L.R.2d It would be useless to attempt to review ......
  • Black Belt Wood Co., Inc. v. Sessions
    • United States
    • Supreme Court of Alabama
    • October 3, 1986
    ...and the injury is broken. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378 Vines, at 1339 (emphasis added.) In this case, Black Belt should have reasonably foreseen an injury occurring. The evidence in this......
  • Request a trial to view additional results
32 cases
  • Parker v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 20, 1991
    ...See Bailey v. Tennessee Coal, Iron & Railroad Co., 261 Ala. 526, 530-531, 75 So.2d 117, 120-121 (1954); Mahone v. Birmingham Electric Co., 261 Ala. 132, 135-136, 73 So.2d 378, 380-381 (1954). Any witness who knows the method used in the business of making records of the kind in question and......
  • Liberty Nat. Life Ins. Co. v. Weldon
    • United States
    • Supreme Court of Alabama
    • November 14, 1957
    ...849, 118 A.L.R. 1318; Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474, and cases cited; Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378. That is the rule laid down by this and other courts with some slight variance in the language by which the thought is expressed......
  • Alabama Power Co. v. Guy
    • United States
    • Supreme Court of Alabama
    • November 9, 1967
    ...So. 849, 118 A.L.R. 1318; Louisville & N.R. Co. v. Courson, 234 Ala. 273, 174 So. 474, and cases cited; Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378; Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696, 61 A.L.R.2d It would be useless to attempt to review ......
  • Black Belt Wood Co., Inc. v. Sessions
    • United States
    • Supreme Court of Alabama
    • October 3, 1986
    ...and the injury is broken. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961); Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378 Vines, at 1339 (emphasis added.) In this case, Black Belt should have reasonably foreseen an injury occurring. The evidence in this......
  • Request a trial to view additional results

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