Patterson v. South & N.A.R. Co.

• Decision Date: 10 April 1890
• Citation: 7 So. 437,89 Ala. 318
• Court: Alabama Supreme Court
• Parties: PATTERSON ET UX. v. SOUTH & NORTH ALA. R. CO.

7 So. 437

89 Ala. 318

PATTERSON ET UX. v. SOUTH & NORTH ALA. R. CO.

Supreme Court of Alabama

April 10, 1890

Appeal from circuit court, Cullman county; JOHN MOORE, Judge.

This action was brought by the appellants against the appellee and sought to recover damages for personal injuries sustained by Mrs. Mary E. Patterson, the wife of her co-plaintiff. The facts, as disclosed by the bill of exceptions, and upon which the plaintiffs base their right to recover, are that Mrs Patterson, while riding mule-back along a public road, which was crossed by the defendant's railroad, was thrown from the mule and injured, by the mule stepping in a hole in a bridge which was required to be kept in repair by the defendant,-the said bridge being within the defendant's right of way, and constituting an approach to the defendant's crossing. The evidence for the defendant tended to rebut any negligence or failure on the part of defendant to keep the said bridge in proper repair, and to establish contributory negligence on the part of Mrs Patterson, by her riding too near the edge of the bridge, and out of the usual route. On the examination of one Dr. Sams after describing the injury and expressing his opinion thereupon, he said: "Suppose said injuries were painful from the way she complained of the same. My opinion is that said injuries were caused from a fall off of a mule or horse falling through a crossing on the railroad." The defendant objected to the introduction of the testimony of Dr. Sams, quoted above, and the court sustained the objection, to which ruling the plaintiff excepted. On the examination of David N. Patterson, one of the plaintiffs, and husband of Mrs. Mary E. Patterson, he was asked, on cross-examination: "What was the character of the mule Mary E. Patterson was riding at the time of the accident, for stumbling?" The plaintiffs objected to this question, but the court overruled the objection, allowed the question to be asked and answered, and the plaintiffs duly excepted.

Among the charges requested by the defendant, and given by the court, and to each of which the plaintiff duly excepted, were the following: "(13) The court charges the jury that if they believe from the evidence that the said bridge, at the crossing where the alleged injury is said to have been incurred, was maintained by the defendant in such manner as not to unnecessarily impair the usefulness of said public road, or to interfere with the safe enjoyment of said public road, then the defendant is not liable, and their verdict should be for the defendant." "(17) If the jury believe that if Mrs. Patterson, in attempting to cross the bridge in question, had followed the usual and ordinary method of crossing it by the general traveling public, she would not have been in any danger, and if they find from the evidence that if Mrs. Patterson was hurt at all she was hurt by riding near the ends of the cross-ties, which place was out of the usual line of travel, then, in riding where she did, she so far contributed to her own injury as to prevent any recovery in this case. (18) If the jury believe from the evidence that Mrs. Patterson was negligent in attempting to cross the bridge in question by riding out of the usual route taken by the traveling public, when s...