Southern Ry. Co. v. Jarvis

• Decision Date: 24 October 1957
• Docket Number: 6 Div. 863
• Citation: 97 So.2d 549,266 Ala. 440
• Parties: SOUTHERN RAILWAY CO. et al. v. Troy v. L. JARVIS.
• Court: Alabama Supreme Court

Page 549

97 So.2d 549

266 Ala. 440

SOUTHERN RAILWAY CO. et al. v. Troy v. L. JARVIS.

6 Div. 863.

Supreme Court of Alabama.

Oct. 24, 1957.

Cabaniss & Johnston, Leigh M. Clark and Drayton T. Scott, Birmingham, for appellants.

Parsons, Wheeler & Rose and Luther Patrick, Birmingham, for appellee.

LIVINGSTON, Chief Justice.

This is a wrongful death action under Tit. 7, § 119, Code of Alabama 1940, by Troy L. Jarvis for the death of his minor son, Billy Jarvis, against Southern Railway Co. and Morrison O. Allen. From a judgment for plaintiff for $16,500, the defendants appeal.

The evidence presented in the case tends to show the following:

The collision involved in this law suit occurred on April 17, 1953, at approximately 5:55 p. m., on Mineral Springs Road, at a public crossing near Republic, Alabama. Harry Lee Sanford was the driver of the automobile, and Billy Jarvis, the plaintiff's minor son, was the only passenger. Jarvis was sitting in the right-hand front seat. The car was proceeding north on the Mineral Springs Road and the train was going west. The train approached the crossing around a curve which was 350 to 400 feet east of the crossing. The Mineral Springs Road going north had a sharp curve in it about 200 feet from the crossing, and was down grade. About 65 to 70 feet from the crossing, a dirt road intersected the Mineral Springs Road. The dirt road was on a bank, and there was evidence tending to show that bushes, underbrush and trees were on this embankment at the time the collision occurred. There is testimony to the effect that there was only one railroad crossing sign, and this sign was east of the crossing about 12 feet from the edge of the pavement. This sign, according to testimony, was about 8 1/2 feet tall and could not be seen by one going north on the Mineral Springs Road until approximately 110 feet from the crossing. Traffic could not be seen on the Mineral Springs Road from the cab of the Diesel until the train was 100 to 125 feet from the crossing, and a person in the cab could only see about 100 feet south up the Mineral Springs Road.

There was a conflict of testimony as to whether or not signals were sounded at the railroad crossing. There were some six witnesses who testified they heard no signals. However, the engineer testified that he did properly signal for the crossing. The evidence is also in conflict as to the speed of the train, the speed estimates varying from 30 to 50 miles per hour. The evidence also tended to show that the front end of the train and automobile collided, but there is conflicting testimony as to who hit who.

Harry Lee Sanford, being in the military service, was not available as a witness, and therefore a showing was made for him. Such showing tended to show that he saw the train when about 135 to 140 feet from the crossing. The showing further stated that as he applied the brakes the gas pedal was caught under it and caused the car to jump and speed up, and that he did not get the car out of gear until he was about 8 feet from the train. There was also testimony to the effect that there were approximately 81 feet of heavy skid marks left by the car up to the crossing.

Though the record is not entirely clear, we take it that the showing for Harry Lee Sanford was agreed upon, subject to legal objections to be made when the showing was offered stating what the witness would swear if present. The trial court sustained plaintiff's objection to the last sentence contained in the showing and excluded it from the jury.

It is contended by the appellant that the refusal of the trial court to admit the last sentence of the written statement by the driver of the automobile in question is reversible error. The first part of the statement by the witness relates entirely to a recounting of the accident; the last paragraph contains the only testimony in evidence which qualifies said witness as an expert driver, and the last sentence expresses an opinion of the witness as to whether the automobile could have been stopped in time.

The last paragraph states:

'I have driven automobiles for several years and know the ordinary braking distances of automobiles and particular the automobile I was driving. (From the time I first saw the train, the brakes in the automobile would have stopped it before the collision, if the gas pedal had not been bent and had not become stuck.)'

This statement is an opinion of the witness, and if admissible at all is admissible as expert testimony. Jones v. Keith, 223 Ala. 36, 134 So. 630. An expert can testify as to what is the most effective way to stop a car. Armour & Co. v. Cartledge, 234 Ala. 644, 176 So. 334.

But only an expert can give expert opinion evidence, and the further question is: Has Harry Lee Sanford been shown to be an expert? Whether or not Sanford was qualified as an expert was within the sound judicial discretion of the trial court. Stewart v. Sloss-Sheffield Steel & Iron Co., 170 Ala. 544, 54 So. 48; Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594; Alabama Consolidated Coal & Iron Co. v. Heald, 168 Ala. 626, 53 So. 162. The only evidence which appears in the record besides the statement by Harry Lee Sanford relating to the qualification of Sanford as an expert was elicited from Mr. Strickland, witness for the plaintiff, on cross-examination. There was an attempt by the cross examiner to determine when Mr. Strickland had last seen Harry Lee Sanford, and if he had been driving at that time. The testimony is as follows:

'Q. He had been out there a year and a half before this accident? A. Yes, sir. He would come around. He knew some of the boys around there, * * *.

'Q. Do you know whether he had been driving an automobile or not? A. No.

'Q. You don't know he wasn't? A. No sir, he wasn't old enough. * * *

* * *

* * *

'Q. What is your idea as to his age? A. Now?

'Q. At the time of the accident? A. Well, I would say he was 19.'

A reading of the statement by Sanford contained in the showing, and a consideration of the above testimony is not convincing to us that there was a palpable abuse of discretion by the trial court in excluding the portion of the showing which set forth the opinion of Sanford, set out above. Dorsey Trailers, Inc., v. Foreman, 260 Ala. 141, 69 So.2d 459; Lumbert v. Jefferson, 251 Ala. 5, 36 So.2d 594; Johnson v. Battles, 255 Ala. 624, 52 So.2d 702.

Assignments of Error 3 and 22

During the course of the cross-examination of one of plaintiff's witnesses as to the movements of the train at or about the time of the collision, the following occurred:

'Q. Did it pick up speed or cut down speed? A. No, sir.

'Q. Kept right on moving? A. Yes, sir. Since there has been other people hit by the trains----

'Mr. Clark. We object to that

'The Court. Sustained. Didn't anybody ask you about that, and gentlemen, disregard that statement. Don't volunteer anything.'

Immediately following this, there was a request for a mistrial. The trial judge refused such request, but offered to go further in instructing the jury to disregard the voluntary statement. This offer counsel for the defendant declined.

Admitting that the answer of the witness was nonresponsive and inadmissible, it does not appear that the motion for a mistrial was improperly refused. Error cannot be predicated on this ruling by the court, for if anything, it was more favorable to the defendant than was warranted.

The defendant made a general objection to a nonresponsive answer. It would have been proper for the judge to overrule such general objection, for the proper way to object to a nonresponsive answer is by a motion to exclude. Howell v. Howell, 210 Ala. 429, 98 So. 630; Ward v. Lane, 189 Ala. 340, 66 So. 499. However, the court sustained the objection and promptly and emphatically sought to cure the error by instructing the jury to disregard the voluntary answer. Fortson v. Hester, 252 Ala. 143, 39 So.2d 649; Empire Coal Co. v. Goodhue, 200 Ala. 265, 76 So. 31; Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543. We feel that the effect of the voluntary statement upon the jury was rendered harmless by the action of the trial court.

The defendant in Assignment of Error No. 1 set forth the following:

'The trial court erred in sustaining the plaintiff's objection to the question propounded to Officer Fulton in regard to what the driver of the automobile told the officer how the accident happened, to which action of the court the defendant duly and legally reserved exception.' Officer Fulton was being questioned concerning the driver, as follows:

'Q. But did you talk to him? A. I did, yes, sir.

'Q. And he told you he was the driver?

'Mr. Wheeler: Judge, I object to what he told him.

'The Court: I will sustain.

'Mr. Clark: We except.

'Q. And he told you how it happened, didn't he?

'Mr. Wheeler: Judge, we object to what this driver told him.

'The Court: I will sustain.

'Mr. Clark: We except, * * *'.

It is the contention of the appellant that although the driver of the automobile was not a party to the instant suit, a statement by him as to how the accident occurred would amount to a declaration against interest, and would therefore be admissible.

Without passing on the above, we need only state in passing that there was no showing as to what the driver of the automobile said to the policeman; therefore, it is impossible to state with certainty that it would have been a declaration against interest. For aught that appears from the record, the trial court was not in error in respect to the foregoing.

Assignments of Error, 7, 9, 10, 11, 19, 20, 21

It is the contention of the appellant, under Assignments of Error 7, 9, 10, 11, 19, 20 and 21, that they were entitled to the affirmative charge with hypotheses; for that from the evidence presented in the case, it was the actions of Harry Lee Sanford, the driver of the automobile in which the plaintiff's son was riding, which were the proximate cause of...