Opinion
6 Div. 690.
December 20, 1917. Rehearing Denied January 24, 1918.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
Tillman, Bradley Morrow, of Birmingham, for appellant. Mathews Mathews, of Bessemer, for appellee.
It is insisted by appellant that count 2, the only one that went to the jury, describes the defect as consisting of a failure to properly secure or fasten the wheel, and that the only defect shown was that the wheel was loose and worn. It may be true that the evidence does not show that the nut or brad with which the wheel was fastened was defective, but as the evidence shows that the wheel in question was considerably worn and had too much play ("more play than the balance of them") the jury could have inferred from the evidence that a wheel in such condition should have been so fastened to the car or axle as to prevent the unusual play of same by a larger nut, a washer or some other means or appliance which would have prevented its coming off as it did, and the jury could also have inferred that the wheel, though worn and loose, would not have come off had it, in its then condition, been properly fastened. Moreover, this variance, if such it could be called, was not specially brought to the attention of the trial court, which cannot be put in error for refusing the general charge on account of same circuit court rule 34 (175 Ala. xxi). Nor was the defendant entitled to the general charge upon the idea that there was no proof that the defect was known to or could have been discovered by the master, and that it negligently failed to remedy same. The evidence shows the wheel was worn and had considerably "more play" than the average wheel, and the jury could infer that it had been in this condition long enough to have been discovered by the exercise of ordinary diligence on the part of the servant of the master intrusted with the duty of seeing that the same was in proper condition. The trial court did not err in refusing charges 5 and 6 requested by the defendant. The case of Clements v. A. G. S. R. R., 127 Ala. 171, 28 So. 643, and other cases cited in appellant's brief in no wise conflict with this holding and do not need special treatment.
We do not think that it takes an expert to tell that one leg is longer, larger, or straighter than another. If the difference was not caused by the injury, the defendant could have brought out, on cross-examination, that the difference in plaintiff's legs existed before the injury. At any rate, this evidence was not subject to the grounds of objection interposed to same; "that it invaded the province of the jury and called for expert testimony."
It is true that the complaint claimed damages as for lost time and wages, and the proof showed that the plaintiff was receiving a certain sum per day when injured, and the defendant could show, in diminution of this item, that it continued to pay him his wages, or a part of same; but we are not disposed to put the trial court in error for not letting the defendant ask the plaintiff how much he was getting from the defendant per day while he was sick, unaccompanied with the inquiry or statement of what it was paid for; that is as wages or for something other than insurance. This inquiry came just after the defendant had made an effort to show that plaintiff had gotten insurance paid him by the defendant while he was sick, and it should have been specified as wages, or have been so framed as to disassociate it from the insurance involved in the inquiry immediately preceding.
The trial court did not commit reversible error in giving the plaintiff's requested charge, which we mark "A," and which included one of the defendant's given charges and attempted to explain same. True, the charge uses the word "car" instead of wheel, as used in defendant's charge, but the wheel was but a part of the car, and both charges merely attempted to deal with the defect which produced the injury; and, if the plaintiff's charge was too broad, it could have been explained or qualified by a countercharge. It is true the charge says the jury might infer negligence upon belief of the hypothesis, and, if faulty at all, it was because too favorable to the defendant. If the jury believed the hypothesis that, "If the car was defective, and that said defect arose from or was not discovered or remedied owing to the negligence of the defendant or some person in the service or employment of defendant and intrusted by it with the duty of seeing that said car was kept in proper condition," they were authorized, not merely to infer negligence, but to fasten negligence on the defendant.
The judgment of the circuit court is affirmed.
Affirmed.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.