St. Louis & S.F.R. Co. v. Savage

• Decision Date: 24 May 1909
• Parties: ST. LOUIS & S. F. R. CO. v. SAVAGE.
• Court: Alabama Supreme Court

50 So. 113

163 Ala. 55

ST. LOUIS & S. F. R. CO. v. SAVAGE.

Supreme Court of Alabama

May 24, 1909

Rehearing Denied June 30, 1909.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by John J. Savage against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Campbell & Johnson, for appellant.

Gaston & Pettus, for appellee.

SAYRE J.

Plaintiff sued to recover damages for bodily injuries sustained by him while a passenger in the wreck of a train operated by the defendant. As tending to support the allegation that plaintiff was injured, and as showing the extent and character of his injuries, it was proper to receive evidence of his physical condition within a reasonable time prior and subsequent to the injury, that he suffered loss of weight that he suffered pain at the time and down to the time of the trial such as he had not suffered before, and insomnia, and had done no work since, and had been able to do none, and to all these things it was competent for the plaintiff to testify as a witness in his own behalf, and the opinion of expert professional witnesses as to the cause of his subsequent condition might be received. Alabama G. S. R R. Co. v. Hill, 93 Ala. 514, 9 So. 722, 30 Am. St. Rep 65; South & N. A. R. R. Co. v. McLendon, 63 Ala. 266. This disposes of assignments of error numbered 1, 2, 3, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, and 30.

A witness having been asked without objection to state what caused the wreck answered: "I believe fast running is all I could account for it, the wreck." Defendant moved to exclude "it was fast running is all I could account for it" on the ground that it was not responsive. Whatever may have been the tenable objections to the answer as evidence, that part of it to which the objection was addressed was not open to the particular objection assigned, and there was no error in overruling the motion to exclude. The assignment of particular objection was a waiver of all others. Jaques v. Horton, 76 Ala. 238; Floyd v. State, 82 Ala. 16, 2 So. 683.

Two counts set out general charges of negligence on the part of the agents or servants of the defendant in operating the train. Plaintiff was permitted to show that the train was not running on time--was behind. We cannot say that the fact that the train was late did not have a tendency to show that it was being operated at an unusual and immoderate rate of speed. There is natural tendency to haste when late, and, while it is generally stated that no mere rate of speed constitutes per se negligence, this rule is in most cases formulated for the purposes of cases in which persons or animals are injured by coming on the track. East T. V. & G. R. R. v. Deaver, 79 Ala. 216. "Railway companies being engaged in the business of conveying passengers and property, and that business being regarded of the highest importance, the speed of trains may be regulated with that end in view." 3 Elliott on R. R. § 1204. "There may, however, be peculiar circumstances involved in the particular case which might justify the conclusion that there was negligence in running at a high rate of speed." 4 Elliott, R. R. § 1589. Certainly with respect to the safety of passengers carried upon the train it cannot be denied that a rate of speed may be excessive, dangerous, and negligent. But no parity of reason requires that defendant should have been allowed to have answers to its questions propounded to the engineer in charge of the train as follows: "State whether or not you had your train under control to stop at the public crossing? State whether or not you could have stopped at the public crossing? State whether or not you were running at a rate of speed at which you could have stopped your train at the public crossing?" The witness had testified that the train was running at a rate of about 30 miles an hour. The conclusions which these questions called for were not permissible shorthand renderings of relevant collective facts, but involved, not only the rate of speed of the train, but other facts and purposes which were wholly foreign to any issue in the case.

On the cross-examination of Dr. C. B. Bibb, the defendant asked him whether he had ever seen sores on the...