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tion is that the injury was the result of the carrier's negligence; and in an action therefor, the plaintiff having shown that he was a passenger, and that he was injured by the derailment, for instance, of the car in which he was being transported, he is, upon this and without more, entitled to recover the damages thereby sustained, unless the defendant, in rebuttal of this prima facie presumption, reasonably satisfies the jury that the derailment was not due to any negligence, and could not have been prevented by the exercise of the highest degree of care, skill, and diligence on the part of the carrier. Authorities supra; Thomp. Carr. 181 et seq.; 2 Wood, Ry. Law, 1096 ; 2 Am. & Eng. Ency. Law, 768 et seq.; Railroad Co.v.Wightman, 29 Gratt. (Va.) 431; Central R. Co.v. Sander, 73 Ga. 513, 27 Am. & Eng. R. Cas. 300 ; New York, L. E. & W. R. Co. v. Seybolt, 95 N. Y. 362, 18 Am. & Eng. R. Cas. 162; Hipsley v. Kansas City, St. J. & C. B. R. Co., 88 Mo. 348, 27 Am. & Eng. R. Cas. 287, and note; Baltimore & Y. Turnpike R. Co. v. Leonhardt, 66 Md. 70, 37 Am. and Eng. Corp. Cas. 194; Eureka Springs R. Co. v. Timmons, 51 Ark. 459, 40 Am. & Èng. R. Cas. 698 and notes ; Stokes v. Saltonstal!, 13 Pet. (U. S.), 181; New Jersey R. & Transp. Co. v. Pollard, 22 Wall. (U. S.), 341. The cases of Georgia Pac. R. Co. v. Hughes, 87 Ala. 610, 39 Am. &. Eng. R. Cas. 674, and Louisville & N. R. Co. v. Reese, 85 Ala. 497, 38 Am. & Eng. R. Cas. 342, to which our attention has been invited in this connection, are not in point. The parties injured, and who were plaintiffs in those actions, were not passengers of the defendant companies, and the principles we have been considering had no application in either of them. The trial court correctly stated the law as to what facts made out a prima facie case for the plaintiff, entitling him to recover, and as to the measure of proof necessary to overturn the presumption of negligence growing out of and resting upon the facts adduced in the first instance by the plaintiff."
Degree of Care Required in the Carrying of Passengers-Instructions. In Montgomery E. R. Co. v. Mallette (Ala. May 5, 1891,) 9 So. Rep, 366, which was an action for personal injuries received by the plaintiff while a passenger upon defendant's railroad train, it was held that there was no error in a charge to the jury that “the law requires the highest degree of diligence, and care, and skill, by those engaged in the carriage of passengers of railroads, known to be careful, diligent and skillful persons engaged in such business."
HILL. (Alabama Supreme Court, January 24, 1891.) Personal Injuries-Physical Examination of Plaintiff-Discretion of Court.While the defendant in an action for personal injuries, is entitled to have a physical examination of the plaintiff's person by experts, the selection of such experts is a matter entirely within the discretion of the trial judge. The refusal of the judge to appoint a particular physician at the instance of the defendant, is not a matter which the supreme court will review,
Same-Evidence as to Previous Health or Subsequent Injuries.-A woman suing for injuries sustained by her while a passenger upon defendant's train, may prove that her health was good up to the time of the accident; that her physical organs discharged their functions naturally and regularly, which was not the case after the accident; the manner in which she was tossed about and jolted by the accident; that after the accident she could hardly get up, suffered great pain, and could not walk any distance or sleep without medicine.
Same-Effect of Negligence of Physician Attending Plaintiff. -The fact that the physician who attended plaintiff after the accident, omitted to call in a surgeon to perform an operation which would greatly benefit the plaintiff, but to which he did not deem himself equal, has no bearing on plaintiff's right of recovery, nor does it tend to lessen or increase her damages, nor affect the credibility or value of the testimony of such physician as an expert.
Derailment of Car-Evidence as to the Condition of Track Near Place of Accident.--The injury to the plaintiff was caused by the derailment of the car in which she was riding, and the evidence tended to show that the cause of such derailment was the breaking of a rail, and that the rail gave way in consequence of the defective condition of the ties. Held, that it was not error to allow plaintiff to adduce evidence going to show that other rails and cross ties in that vicinity were also old, worn and decayed.
Statement of Witnesses as to Condition of Cross Ties—Best Recollection. - The court properly received the testimony of a witness that “ to the best of my judgment what we called in the short quarter,' where the rail was broken. was on a rotton cross tie, but I won't be positive."
Medical Expert-Extent of Practice.-In an action for personal injuries, it is proper for the court to disallow as leading the following question. * You have had many cases of obstetrics, have you ?"
Care Required of Carriers of Passengers-Instruction—" Strict Diligence." --In an action for an injury to a passenger, it is not error for the court to instruct the jury that the law requires "strict diligence" on the part of carriers of passengers.
Derailment of Car-Presumption of Negligence.- Where a passenger upon a railroad train is injured owing to the derailment of the car in which he is travelling, a presumption of negligence on the part of the carrier arises from proof of such accident.
General Charge Ex Mero Motu-How to be considered.—Where a trial judge gives a general charge ex mero motu, it must be considered as a whole. Each declaration being interpreted in the light of its context, and is, when so considered, it asserts the law clearly, it is no ground for reversal that a particular clause of such general charge considered alone is defective.
Argument of Counsel-Improper Remarks.-A party can have no just ground of complaint on account of remarks of counsel in addressing the jury, improper in themselves, which have been necessitated by like remarks on the other side.
Action for Injury to Passenger- Count in Complaint-Evidence to Support - Instructions.-In an action by a passenger for injuries caused by the derailment of a car, the complaint alleged that the defendant was negligent in running its train at too great speed, and also in maintaining a defective track. There was no evidence of negligence as to the speed of the train. Held, that it was proper for the court to refuse a charge to find for defendant on such count.
Injury Caused by Defective Track-Gross Negligence--Exemplary Damages.-In an action by a passenger to recover damages for an injury caused by a derailment, evidence that the cross ties near the place of the accident were unsound, decayed and rotten, and that the rails were old and defective, and that they were from time to time replaced by other old rails, warrants the finding of such gross negligence on the part of the defendant as will authorize an award of exemplary damages.
Same-Same.-An instruction which limits the authority to impose exemplary damages on a carrier of passengers, for injuries sustained by reason of the derailment of a car, to cases in which there is an "entire want
of care," on the part of defendant in the maintenance of its track, is properly refused.
Instructions to Jury-Singling out Testimony.—A court is under no obligation to single out the testimony of one or more witnesses, and instruct the jury to reach certain conclusions if such testimony be believed.
Same-Doubt and Uncertainty as to Facts. The court properly refused an instruction to find against the plaintiff provided the jury were “in doubt and uncertainty " as to certain facts essential to her case.
APPEAL from City Court of Birmingham.
Action by Nollie C. Hill, by next friend, against the Alabama Great Southern Railroad Company, for personal injuries sustained by plaintiff, caused by derailment of a car on which she was a passenger. Judgment for plaintiff, and de. fendant appeals. For report on former appeal, see 90 Ala. 71, 44 Am. & Eng. R. Cas. 441.
Wood & Wood, for appellant.
MCCLELLAN, J.-1. It was determined on the former appeal in this cause that the defendant was entitled to have a
physical examination of the plaintiff's person made Physical
by disinterested and competent experts to be apexamination.
pointed by the court. The selection of such experts is a matter entirely within the discretion of the trial judge. Neither party has any right, by suggestion, motion or otherwise, to control his discretion in any degree. The court, in making the order for a physical examination, and in designating the experts to execute it, is conserving the interest of neither the defendant nor the plaintiff, but the ends of justice; and when a competent and impartial commission is named, it is a matter of no consequence whatever that the parties, or either of them, preferred and demanded the appointment of other persons. There is no suggestion here that the physicians selected were not in all respects qualified to discharge the duty imposed upon them by the order of the court; and the court's declination to appoint Dr. Battey, at the instance of the defendant, is not a matter which this court will review. Moreover, were this action revisable, we are by no means prepared to say that the fact that Dr. Battey had already formed and expressed an opinion relative to the existence of the injuries laid in the complaint was not ample justification for the court's refusal to appoint him on the commission. 2. Motions to postpone a trial to a later day of the term
stand upon the same footing as applications for Motion for continuances from term to term, and both are adnew trial.
dressed to the unrevisable discretion of the court. De Arman v. State, 77 Ala. 10; Walker v. State, (Ala.), 9 South. Rep. 87; 3 Brick. Dig. pp. 404, 405.
3. This cause was tried in October, 1890, before the passage of the act allowing appeals to this court from “decisions of the city and circuit courts in this state granting or refusing to grant motions for new trials," (Acts
Supreme 1890-91, p. 779 ;) and the action of the city court,
Court. in denial of the application for a new trial, made by the defendant, cannot be reviewed. Trammell v. Vane, 62 Ala. 301 ; Tyree v. Parham, 66 Ala. 424; Bedwell v. Bedwell, 77 Ala. 587; Alabama G. S. R. Co. v. Hill, 90 Ala. 71, 44 Am. & Eng. R. Cas 441.
4. Damages are claimed in this action for that the plaintiff, a passenger on defendant's train, received, from the derail. ment of the car in which she was being transported, injuries which produced present and continuing Evidence as pain and mental anxiety, immediate physical hurts, injuries. which are permanent in their character and are alleged to have seriously impaired her health, and threatened her life. Whether she was injured at all was a point of much controversy in the case. Similarly, each detail and specification of injury was made the subject of severe contestation on the trial. Whether the injuries, if any, were painful, and in what degree; whether she was shocked and prostrated; whether she was subsequently in bad health as a resultant of the injuries she received; whether, and to what extent, her physical condition after the accident was abnormally bad, were, with other like inquiries, injected into the case by the pleadings, and prosecuted before the jury. We cannot for a moment be in doubt that, as pertinent to these issues, it was entirely competent for the plaintiff to prove that she had always enjoyed good health before and up to the time of the derailment; that her physical organs had theretofore discharged their functions naturally and regularly; the manner in which she was jolted, tossed, and thrown about as the car ran for some distance on the cross-ties, and finally turned over an embankment; that immediately afterwards she “could hardly get up," and was "suffering great pain;" that afterwards she “could never sleep, unless she had some medicine to quiet her;" and that she “had not undertaken since the accident to walk any great distance, and could not walk any great distance;” thať" her menstruations had been irregular ever since she was hurt," etc. All this evidence was, in our opinion, clearly admissible as tending to show the fact and extent and character of the injuries which she had sustained. Bay Shore R. Co. v. Harris, 67 Ala. 6; East Tenn., V. & G. R. Co. v. Lockhart, 79 Ala. 315; South & North Ala. R. Co. v. McLendon, 63 Ala. 266; 2 Thomp. Neg. 1256, 1257.
5. The reasons which actuated Dr. Drennen in his omission
“ to call in some surgeon and remove" the coccyx bone could
not, of course, have any bearing upon plaintiff's Failure of physician to right of recovery, nor tend to lessen or increase perform her damages. Nor do we conceive that such surgical
reasons could have affected the credibility or value operation.
of his testimony as an expert. He testified that the condition of this bone was the cause of much pain to the plaintiff, and that this condition could be cured by its removal by a surgical operation, to which he did not deem himself equal. Add to these facts the concession of what is assumed in the question, that he did not call on a surgeon, etc., and it would seem that, standing alone, they involve a greater tendency to impeach his competency as an expert than any explanation of his failure to take steps for the operation would have done. We cannot assume that the reasons called for by the question would have been of such character as to impugn the intelligence and professional attainments of the witness. Moreover, we know of no basis for a distinction between wit. nesses of this and other classes, which would take these, when speaking to matters of this kind, out of the general rule against drawing out the reasons which conduced to an actor omission to which they depose. Herring 2'. Skaggs, 62 Ala. 180.
6. The objection to the testimony of Dr. Drennen, to the effect that plaintiff's injuries were of such character as that
child-bearing would be thereby rendered perilous Injury rendering
to life, is untenable. It may be that she might child bearing never have married, even had she not been injured, dangerous. or that, marrying, she might have had no desire
to bear children, or even that, desiring issue, she might not have had any, as is argued by counsel ; but these considerations can exert no influence on the question. It is to be assumed that every physical endowment, function, and capacity is of importance in the life of every man and woman and that occasion will arise for the exercise of each and all of them; and to that extent to which any function is destroyed or its discharge rendered painful or perilous by the wrongful infliction of personal injury, is the party complaining entitled to damages. We can, in other words, conceive of no physical injury wrongfully inflicted, whether entailing pain only or disfigurement or incapacity, relative or absolute, to perform any of the functions of life, which may not be made the predicate for compensation in damages. Mayor, etc., v. Lewis, (Ala.), 9 So. Rep. 243.
7. The evidence tended to show that the immediate cause of the derailment from which the injury complained of resulted, was the breaking of a rail as the coach on which the