Mobile Light & R. Co. v. R.O. Harris Grocery Co.

• Decision Date: 18 January 1921
• Docket Number: 1 Div. 406
• Citation: 88 So. 55,17 Ala.App. 659
• Court: Alabama Court of Appeals
• Parties: MOBILE LIGHT & R. CO. v. R. O. HARRIS GROCERY CO.

88 So. 55

17 Ala.App. 659

MOBILE LIGHT & R. CO. v. R. O. HARRIS GROCERY CO.

1 Div. 406

Court of Appeals of Alabama

January 18, 1921

Rehearing Denied Feb. 8, 1921

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by the R.O. Harris Grocery Company against the Mobile LIght &amp Railroad Company for damages for injuries to an automobile truck. Judgment for plaintiff, and defendant appeals. Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellant.

Stevens McCorvey & McLeod, of Mobile, for appellee.

SAMFORD J.

This is the second appeal in this case, and on the former appeal this court undertook at some length to lay down the proper rules as applicable to the facts there presented. M.L. & Ry Co. v. Harris Gro. Co., 84 So. 867. On the second trial in the circuit court, at which the plaintiff again recovered judgment, the trial proceeded, with marked precision, well within the rules as declared in the former appeal. The facts in this record as applicable to the question presented in this appeal, are entirely similar, and present little change from those appearing in the record of the first appeal.

The first assignment of error on this appeal is to the action of the court in overruling defendant's objection to the question propounded to plaintiff's witness Shaw, "What in your opinion, was the reasonable market value of this truck just prior to the accident?" The witness had qualified to testify to the value by showing that he was familiar with the market value of trucks of a similar type, and therefore was competent to testify as to value; besides the objection was waived, as no motion was made to exclude the answer.

The above is equally applicable to the second assignment of error, based on the action of the court in overruling defendant's objection to the witness Shaw as to the value of the truck just after the accident.

During the cross-examination of plaintiff's witness Shaw he testified without objection that in his opinion the repairs to the truck were worth $200. On redirect examination this witness was allowed, over the objection of defendant, to look at a memorandum made by him at the time, and to testify, upon refreshing his recollection, that the repair bill for the truck was $190.28. This was not error, and, if so, the one offset the other. Besides, if error, it was without injury.

The insistence is made that the court erred in refusing to give, at the request of defendant, the general charge as to count 1. "Was the defendant's car being run at such speed as that the motorman, keeping a diligent lookout ahead, could have stopped the car within the distance of his range of vision under the conditions existing on the street at the time." M.L. & Ry. Co. v. Harris, supra. So that:

"If persons or property be upon or dangerously near the track of

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