Rowe v. Alabama Power Co.

• Decision Date: 19 March 1936
• Docket Number: 8 Div. 703
• Citation: 167 So. 324,232 Ala. 257
• Parties: ROWE v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

167 So. 324

232 Ala. 257

ROWE v. ALABAMA POWER CO.

8 Div. 703

Supreme Court of Alabama

March 19, 1936

Rehearing Denied April 23, 1936

Appeal from Circuit Court, Colbert County; C.P. Almon, Judge.

Action for damages for personal injuries by Walter L. Rowe against the Alabama Power Company. From a judgment for defendant plaintiff appeals.

Affirmed.

W.L Chenault, of Russellville, and C.E. Carmichael, of Tuscumbia for appellant.

Andrews & Almon, of Sheffield, and Martin, Turner & McWhorter, of Birmingham, for appellee.

BROWN Justice.

This is an action on the case by appellant against appellee to recover damages for personal injury.

The several counts of the complaint aver that the defendant was engaged in the business of operating an electric railway as a common carrier of passengers, and for hire or reward undertook to carry the plaintiff from Sheffield, Ala., "to another point on defendant's railroad between Sheffield and Tuscumbia."

The first count avers, further, "That defendant disregarded its duty in that behalf, did not use due and proper care that the plaintiff be safely carried by and upon said electric railroad on said journey, but wholly neglected to do so, in this: that it suffered one of the steps of the car in which the plaintiff was riding and being carried as such passenger by the defendant to be so unsafe, that same had a banana peeling [peel] thereon, and as a proximate consequence thereof, plaintiff was thrown or caused to fall from said car. *** Plaintiff avers that defendant was in charge or control of said car, and so negligently conducted itself in that regard that the step of the car became so unsafe, as aforesaid, and as a proximate consequence thereof plaintiff suffered said injuries and damages." By amendment the plaintiff added to this count the further averment: "The defendant's servant or agent in charge of said street car had knowledge that said banana peeling [peel] was on said step of said car, or the same had been there for such time that he should have known the same was on said step." (Italics supplied.)

The third count avers that plaintiff "was caused to fall by a banana peeling [[peel] coming in contact with the plaintiff's foot when he placed his foot on the step of the said electric car in the act of dismounting and the plaintiff alleges that the defendant or its servants, while acting within the line of duty negligently allowed the step of the said car upon which the plaintiff was a passenger to become unsafe, in that, the defendant or its servants while acting within the scope of their authority and in line of duty negligently placed, allowed to be placed or suffered to remain a banana pealing [peel] in the step of the said electric car and as a proximate consequence of said negligence of the defendant or its servants while acting within the scope of their authority and in line of duty, the plaintiff was injured and damaged as aforesaid in the sum of five thousand dollars as above alleged."

The plaintiff also added to this count, by amendment, the averment that the defendant's servant in charge or control of said street car had knowledge that the banana peel was on said step, or that it had been on the step for such length of time as to impute notice thereof to him.

The second count charged, or at least was designed to charge, wantonness or intentional injury; and the fourth wantonness. The evidence clearly did not support counts 2 or 4.

The defendant pleaded the general issue in short, by consent, with leave to give in evidence any matters which would constitute a good defense if specially pleaded to have effect as if so pleaded.

At the conclusion of the evidence, the court, at defendant's request, gave the affirmative charge in its favor; the charge being requested in writing.

It is well settled that the objection, that an answer of a witness to a question is not responsive, is available only to the party asking the question. Whiddon v. Malone, 220 Ala. 220, 124 So. 516; Ex parte Alabama Great Southern R. Co. (Alabama Great Southern R. Co. v. Hunt), 204 Ala. 504, 86 So. 100; Talley v. Whitlock, 199 Ala. 28, 73 So. 976; Forehand v. White Sewing Machine Co., 195 Ala. 208, 70 So. 147; Shriner v. Meyer, 171 Ala. 112, 55 So. 156, Ann.Cas.1913A, 1103; Central of Georgia Ry. Co. v. Chicago Varnish Co., 169 Ala. 287, 53 So. 832; Alabama City, Gadsden & Attalla Railway Co. v. Bullard, 157 Ala. 618, 47 So. 578; O'Neal v. McKinna, 116 Ala. 606, 22 So. 905.

It is also well settled that: "Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or if, from the nature of a particular fact, better evidence is not attainable, the opinion of a witness, derived from observation, is admissible." Mayberry v State, 107 Ala. 64, 18 So. 219, 220; Watson v. State, 217 Ala. 164, 115 So. 101; Baugh v. State, 218 Ala. 87, 117 So. 426; Diamond v. State, 219 Ala. 674, 123 So. 55; Stinson v. State, 223 Ala. 327, 135 So....