Opinion
8 Div. 14.
March 22, 1928.
Appeal from Circuit Court, Lauderdale County; Charles P. Almon, Judge.
Bradshaw Barnett, of Florence, for appellant.
It was error to sustain objection to questions asked witness Stein on cross-examination. 2 Blashfield's Cyc. Auto. Law, 1684; 22 C. J. 535; Tex., etc., R. Co. v. Mortensen, 27 Tex. Civ. App. 106, 66 S.W. 99. It was error to allow plaintiff to interrogate witness Stein as to whether he would have hit plaintiff if he had turned out to the left or if he had stayed on the left. 2 Blashfield, p. 1665; Ala. Power Co. v. Armour Co., 207 Ala. 15, 92 So. 111; Ala. Power Co. v. Brown, 205 Ala. 167, 87 So. 608; Taylor v. Lewis, 206 Ala. 338, 89 So. 581. The argument of counsel for plaintiff constituted reversible error. Cross v. State, 68 Ala. 476; Flowers v. State, 15 Ala. App. 220, 73 So. 126; Hardaman v. State, 17 Ala. App. 49, 81 So. 449; Chambers v. State, 17 Ala. App. 178, 84 So. 638; B. R. L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; McDaniel v. State, 20 Ala. App. 407, 102 So. 788. Charges 1 and 2 should have been given. 29 Cyc. 440; Hester v. Hall, 17 Ala. App. 25, 81 So. 361; Ray v. Brannan, 196 Ala. 113, 72 So. 16; Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794, L.R.A. 1918F, 137; Salter v. Carlisle, 206 Ala. 163, 90 So. 283; Huddy on Automobiles (5th Ed.) 622. The verdict and judgment were contrary to the great weight of the evidence; there was a variance between pleading and proof. Smith v. Causey, 28 Ala. 655, 65 Am. Dec. 372; B. R. L. P. Co. v. Hunnicutt, 3 Ala. App. 448, 57 So. 262; L. N. v. Cannon, 158 Ala. 453, 48 So. 64. Demurrer to the complaint should have been sustained. H. A. B. R. Co. v. Dusenberry, 94 Ala. 413, 10 So. 274; Worthington v. Davis, 208 Ala. 600, 94 So. 806; McDougal v. A. G. S., 210 Ala. 207, 97 So. 730. The general charge for defendant should have been given. C. of G. v. Isbell, 198 Ala. 469, 73 So. 648. Charges moved for must be given or refused in the terms in which they are written. Code 1923, § 9509; Hart v. State, 21 Ala. App. 621, 111 So. 47.
James C. Roberts, of Florence, for appellee.
A witness may testify as to what was done and state the facts, and it is for the jury to draw the conclusions. B. R. L. P. Co. v. Randle, 149 Ala. 539, 43 So. 355; Richardson v. State, 145 Ala. 46, 41 So. 82, 8 Ann. Cas. 108; Ray v. Brannan, 196 Ala. 113, 72 So. 18. There was no error in allowing plaintiff's questions to witness Stein. Hunter v. State, 20 Ala. App. 152, 101 So. 100. The argument of counsel for plaintiff was not improper. L. N. R. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 So. 760. The complaint was sufficient. Birmingham Sou. Ry. Co. v. Lintner, 141 Ala. 420, 38 So. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461. The general charge and motion for new trial were properly refused. Birmingham Sou. Ry. Co. v. Lintner, supra.
Plaintiff, appellee, was riding his mule along the right outside edge of the road. Defendant was driving his automobile truck in the same direction. The forward end of the truck came into collision with the hind end of the mule, killing the mule and injuring the plaintiff. Hence the judgment here presented for review.
Thomas Stein, a witness for plaintiff, was in the close vicinity of the accident, and testified as to what happened. Defendant reserved exceptions when the court sustained plaintiff's objections to questions as follows: "Did he" (meaning defendant) "have the car under control when he passed Gibson, in your judgment?" and "Did the car appear to get away from him at any time before he struck the mule?" The answers could have been nothing but the inferences drawn by the witness from facts observed, nor was there at any time any contention, nor any evidence to support a contention, that defendant lost control of the car. In the circumstances, we are unwilling to predicate reversible error of the court's rulings. If defendant considered the matter to be of any importance, he should have asked for the facts observed by the witness and left the proper conclusion to be drawn by the jury. The issue of law presented is different from what it would have been had these questions been put to the driver of the truck. In Ray v. Brannan, 196 Ala. 113, 72 So. 16, cited by appellant, quite a different question was raised. In that case, in which plaintiff was injured in an automobile accident, it was ruled that the witness should have been allowed to state that he could not see or estimate defendant's position on a cross street when he first saw him coming. Whatever may be said of that ruling, it does not support appellant's contention in this case.
The court allowed plaintiff to interrogate the witness Stein as follows: "If Lando Ritter had turned to the left and given Gibson as much as half of the road or less, he would not have hit him, would he?" and "If he had stayed on the left-hand side in passing him, and given Gibson half of the right, he would not have hit him?" It can only be said, in justification of these rulings, that, looking to the case as a whole, it is obvious that the witness' negative answers did no harm because the conclusions sought were self-evident and their statement by the witness added nothing to the case one way or the other; in other words, the answers sought evoked information which was already in possession of the jury, for the undisputed evidence was that the roadway was 18 to 20 feet wide.
The statement made in argument by plaintiff's attorney that, "when a man goes and gets George Barnett and Henry Jones both (defendant's attorneys), he's got a bad case," was improper; but defendant's objection thereto, viz., that it was a statement of fact not shown by the evidence was not well taken, for counsel have a right to draw inferences of law and fact as they may be advised, within reason, and the statement of counsel was a mere inference. The remark was not entirely proper, as we have said, but was not so "grossly" improper or highly prejudicial as to warrant a reversal on the court's ruling. L. N. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 So. 760.
Charge No. 1, refused to defendant, was properly so refused. The charge takes no account of the negligence alleged — and proved, as the jury may have found — in driving the truck too close to the mule, 12 to 18 inches as the evidence went to show. Knowing a mule, as we may assume defendant did, it was well within the province of the jury to find that due care for the safety of the mule and its rider would have suggested to him (the driver) that the truck be not driven so close — this in view of the evidence which went to show that the mule was on the outer verge of the roadway when defendant, having abundant room to do so, might have avoided the likelihood of a mishap to plaintiff by veering somewhat to the left, which he failed to do. Without taking issue with the decision of the Court of Appeals in Hester v. Hall, 17 Ala. App. 25, 81 So. 361, we state our opinion that this case differs materially from that.
Charge 2 was well refused to defendant; unless the "whirling of the mule" may have been attributable to negligence on the part of plaintiff, it should not have been allowed to have the effect of depriving plaintiff of a recovery on account of the damage wrought by the negligence of defendant. If the "whirling of the mule" should have been provided against by defendant within the bounds of the reasonable care suggested by the situation in which the parties found themselves, the plaintiff was entitled to recover even though the "whirling of the mule" contributed to the result.
The motion for a new trial was overruled without error. The complaint alleged that defendant ran over plaintiff, struck plaintiff's mule, and knocked plaintiff down. It is insisted that the evidence did not sustain the allegation the defendant ran over plaintiff — that there was a variance. Defendant ran his autotruck against plaintiff's mule. The mule was killed outright. Plaintiff was thrown unconscious to the roadway, and bruised and injured so that he required the attendance of a surgeon for a week or thereabouts. If defendant relied on a variance, it should have been brought to the attention of the court by an objection to the evidence. Circuit court rule 34.
When refusing the charges to which reference has heretofore been made, the court wrote upon the charges the reasons for their refusal. Defendant appellant refers to the statute (section 9509 of the Code of 1923), and insists that the trial court violated the statute by writing more than "given" or "refused" on these charges, and therefore that his motion for a new trial, based upon this ground among others, should have been granted. The court indulged a work of supererogation, but we are wholly unable to see how that action operated prejudicially to defendant in this or the trial court.
It is further insisted that the trial court also violated that provision of section 9509, in that the court did not follow precisely the language which the section places in the mouth of the trial judge when reading given charges to the jury. There is no complaint that the trial judge did not speak "in a clear and audible voice" as the statute requires, but merely that he did not follow the form provided by the statute. Our judgment is that the form laid out in the section is nothing but a form, and that, when the trial court instructs the jury in every essential particular as the statute prescribes, no error results. This the trial court did.
The demurrer to the complaint was properly overruled. Smith v. Clemmons, 216 Ala. 52, 112 So. 442.
There was no error in the court's refusal of the general charge requested by defendant nor in the overruling of the motion for a new trial on that ground.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.