Thames v. Louisville & N. R. Co.

• Decision Date: 12 October 1922
• Docket Number: 6 Div. 556.
• Citation: Thames v. Louisville & N. R. Co., 208 Ala. 255, 94 So. 487 (Ala. 1922)
• Court: Alabama Supreme Court
• Parties: THAMES v. LOUISVILLE & N. R. CO.

94 So. 487

208 Ala. 255

THAMES v. LOUISVILLE & N. R. CO.

6 Div. 556.

Supreme Court of Alabama

October 12, 1922

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action for damages by Carolyn Thames, by her next friend, against the Louisville & Nashville Railroad Company.Following verdict and judgment for plaintiff, the trial court granted defendant's motion for a new trial, from which action the plaintiff appeals.Affirmed.

Percy Benners & Burr, of Birmingham, for appellant.

Tillman Bradley & Baldwin, of Birmingham, for appellee.

ANDERSON C.J.

The appeal in this cause is based solely upon the action of the trial court in granting the defendant a new trial upon grounds 47 to 57, inclusive, as contained in the motion, the said trial court having expressly overruled the motion as to all other grounds.The questions involved in the grounds upon which the motion was granted tended to impress upon the jury the fact that the defendant had settled with Miss Yerby and in effect admitted its liability to her and was contesting the plaintiff's right to recover, notwithstanding Miss Yerby was the driver of the automobile and may have been guilty of contributory negligence, while the plaintiff was only a guest, and the negligence of Miss Yerby was not imputable to her.The impropriety of these questions is not controverted by appellee's counsel, and the highly prejudicial effect of same upon the mind of the jury cannot be seriously doubted.

So the question is, Were the questions so removed and the prejudicial effect so eradicated as to have reasonably convinced the trial court that they did influence or prejudice the jury in the rendition of the verdict either as to result or the amount of same?The trial court was present and was an eyewitness to the proceedings and was in a position to observe the manner of counsel and the countenance and expression of the jury when the things complained of transpired.In other words, the trial court, when acting upon the motion, was in possession of data and circumstances which are not and could not be presented by the record to this court, and we cannot disturb the conclusion reached, unless we can say that it affirmatively appears from the great weight of the evidence and the surrounding facts and circumstances that this conduct did not influence the jury in the rendition of the verdict, either as to result or amount.We have been cited by counsel for appellant to several cases wherein this court has declined to disturb verdicts, and wherein perhaps the conduct complained of was as prejudicial or more so than that here involved, and the efforts to eradicate same were no more stringent or sweeping, notably Birmingham R. L. & P. Co. v. Gonzalez,183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; and Tenn. Co. v. Spicer,206 Ala. 141, 89 So. 293.

In the Gonzalez Case, the trial court, in the denial of the new trial, in effect held that the argument was so eradicated that it did not prejudice the jury in the rendition of the verdict, and this court, after resolving the presumption in favor of the trial court, which possessed advantages over this court, declined to disturb its conclusion upon the new trial.Had the trial court granted the motion, this court would doubtless have declined to disturb the ruling, just as it feels constrained to do in the case at bar or had the trial court granted the motion in the Gonzalez Case, its action would no doubt have been affirmed just as we do in the instant case.

In the Spicer Case there does not appear to have been a motion for a new trial or the action thereupon presented to this court because of the asking of the improper unanswered question.The question was objected to and the objection sustained, and this court did not feel disposed to reverse the trial court for an abuse of its discretion in declining to withdraw the case from the jury and continue the same after the court had refused the proffered evidence, simply because counsel in remarks, addressed to the court and not the jury, insisted upon the competency of the evidence.The trial court in effect held that the insistence of counsel in argument to it and not the jury did not prejudice the jury in declining to continue the case, and there seems to have been no motion for a new trial based upon the theory that the prejudice had not been eradicated and had influenced the jury to...