Watts v. Espy

• Decision Date: 19 June 1924
• Docket Number: 6 Div. 121.
• Citation: 211 Ala. 502,101 So. 106
• Parties: WATTS v. ESPY.
• Court: Alabama Supreme Court

101 So. 106

211 Ala. 502

WATTS v. ESPY.

6 Div. 121.

Supreme Court of Alabama

June 19, 1924

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by Mary Espy, by her next friend, W. M. Espy, against W. A Watts, for damages for personal injuries alleged to have been sustained when plaintiff was stricken, on a public street crossing in the city of Birmingham, by an automobile driven by defendant. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Stokeley Scrivner, Dominick & Smith, of Birmingham, for appellant.

John W Altman and J. K. Taylor, both of Birmingham, for appellee.

THOMAS J.

The trial was had on a count for simple negligence and defendant's pleas in short by consent with leave to give in evidence any special defense that might be properly pleaded. The amendment striking the wanton count and for pleading in short was effected by the pleading and agreement in writing on file of date February 14, 1923.

There was a diagram of the street crossing where the accident occurred that the witness McTyeire for plaintiff had referred to and indicated where the injury occurred, stating that it was where the sidewalk would have extended had the streets not intersected. Though the witness had stated, "She [plaintiff] was where they always go across," meaning across the street, this did not make proper the question, "Did they ever come diagonally across there," indicating the street intersection. The witness had testified positively where the injured child was on the crossing or street.

The plaintiff, as a witness, having testified that before the injury for which suit was brought she "had never had any trouble when" her "monthly sickness came on," was asked: "Since that time, I will ask you whether or not, beginning then, and since then you have had more trouble at these periods than you ever had before;" and answered: "Beginning that night I had." Defendant interposed timely objection and moved to exclude the answer and reserved exceptions to said rulings. In this there was no error. The witness was merely stating a periodic fact of her changed physical condition and the time thereof. This was for the consideration of the jury, as shedding light upon the extent and nature of the injury she had that day sustained.

The defendant, as a witness, having detailed the fact of the accident, said:

"After I stopped the car I got out and Mr. Randle also got out of the car. Mr. Randle took her by one arm and assisted her over to the hospital and I got back in my car and parked it and went on over to the hospital. I mean I got my car out of the way of the traffic."

Thereupon defendant's counsel asked the following:

"Did you offer to take her home?"

Objection being made by plaintiff, the court asked:

"Do you mean at that particular time, as a part of the res gestæ?"

And, defendant's counsel answering in the negative, the objection was sustained. Defendant "excepted and offered to show that defendant did offer to take plaintiff home." There was no error in the ruling and adherence thereto.

The rule as to objectionable argument was given recent statement in Anderson v. State, 209 Ala. 36, 43, 44 (20), 95 So. 171, and need not be repeated. We think the language complained of should not have been indulged and was calculated to exert an improper influence on the minds of the jurors. Wolffe v. Minnis, 74 Ala. 386. The remarks of junior counsel in the concluding argument for plaintiff brought the case within the influence of the exception to the general rule as to objectionable...