Southworth v. Shea

• Decision Date: 14 November 1901
• Citation: 30 So. 774,131 Ala. 419
• Parties: SOUTHWORTH v. SHEA.
• Court: Alabama Supreme Court

30 So. 774

131 Ala. 419

SOUTHWORTH v. SHEA.

Supreme Court of Alabama

November 14, 1901

Appeal from circuit court, Mobile county; W. S. Anderson, Judge.

Action by Mary A. Southworth, administratrix of James Southworth deceased, against Thomas J. Shea. Judgment for defendant, and plaintiff appeals. Affirmed.

Upon the examination of the plaintiff as a witness in her own behalf, and after she had testified that her intestate was her husband, she was asked the following question: "What was his [intestate's] usual time of coming home in the evening?" The defendant objected to this question, the court sustained the objection, refused to allow the question to be answered, and to this ruling of the court the plaintiff duly excepted.

Fredk. G. Bromberg and Bromberg & Hall, for appellant.

Gregory L. & H. T. Smith, for appellee.

SHARPE J.

Defendant working under a contract with the city of Mobile, made a manhole about two feet wide and five feet deep, close to a car track, and leading from the street surface to an underground sewer that was being constructed, and had piled beside the hole dirt and other material, which obstructed part of the street. The complaint imputes to him negligence in failing to maintain lights or other thing to give warning of the obstructions. According to the first and third counts of the complaint, plaintiff's intestate fell into the hole, and in attempting to get out in the only practicable way, which was next to the car track, he was struck and injured by a passing car. By the other counts the injury is attributed to the fall itself, which as averred in the second count was in the hole, and as averred in the fourth count was on the obstructions. On the trial the evidence was without material conflict. A street car motorman testified to the effect that after dark, when running his car, he discovered the intestate lying with his legs on the car track, and his head near the manhole, and that he (the witness) stopped the car as its front platform got above the intestate, without hurting him. Other evidence tended to show the intestate when so found, was helped up, said he was not hurt, and, with assistance, walked home, and that his collar bone and some of his ribs were broken, wherefrom, a few days later, he died.

Plaintiff's counsel inquired of a witness "what was his [the intestate's] usual time of coming home in the evening," and an objection made to this question was sustained. This ruling was proper, for the purpose of the question was not stated to the trial court and the question itself did not suggest that a responsive answer would have thrown any light on the matters in controversy.

The evidence relating to the intestate's injury being substantially as above stated, the defendant moved to exclude the whole evidence. The bill of exceptions recites that "upon the arguing of this motion plaintiff conceded that she had not made out a prima facie case entitling her to recover under the first and third counts of the complaint." The...