Opinion
6 Div. 815.
November 28, 1918.
Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.
J. H. Bankhead, Jr., and M. E. Nettles, both of Jasper, for appellant.
Norman Gunn, of Jasper, for appellee.
If any of defendant's servants, in charge of the train which plaintiff was in the act of boarding as a passenger, so negligently conducted defendant's business that they pushed or shoved her against the car step or platform, it was a breach of duty for which defendant was liable.
We think that both counts of the complaint were sufficient as against the demurrers. But, in any case, the evidence shows without dispute that the flagman who attempted to assist plaintiff and, as claimed, negligently shoved her, was acting for defendant in the line of his duty, and defendant could not have been prejudiced by a complaint defective in that particular.
While damages for the cost of medicines or medical treatment cannot be recovered unless specially claimed (Irby v. Wilde, 150 Ala. 402, 43 So. 574), that rule does not forbid proof that medicines were applied by an injured person to his wounds. In this case, defendant, on plaintiff's cross-examination, brought out the fact that plaintiff did not call in a doctor to treat her alleged bruises. It was clearly competent for plaintiff in rebuttal to testify that she doctored herself by applying remedies.
Count 3 of the complaint was for willful or wanton injury, and was withdrawn from the jury by the charge of the court. Hence the exclusion of testimony by the flagman that he held no malice toward plaintiff was without prejudice, even if it had been competent in that form. Moreover, he was immediately allowed to state that he had no "ill feeling" toward her.
We are unable to see how defendant could have been prejudiced, or plaintiff benefited, by the question to the flagman on cross-examination, "If you gave her a shove or pushed her on that step, then you had no authority to do that?" He answered, "No," and, if it was prejudicial to any one, it was to plaintiff rather than to defendant. The fact was of course immaterial, except, if he had answered affirmatively, to aggravate the injury and the damages.
Charge 1, refused to defendant, was a correct charge and should have been given. It was, however, fully covered by the oral instructions given to the jury, and prejudice cannot be imputed to its refusal.
The general affirmative charges requested by defendant were properly refused.
We have considered the testimony bearing upon plaintiff's injury, and we are of the opinion that the damages allowed were clearly excessive, and that $200 would be a liberal allowance in that behalf.
Let the judgment be reversed, and the cause remanded for another trial, unless plaintiff shall file her consent to a reduction of the amount of the judgment to $200, within the time prescribed by law. In case of such consent, let the corrected judgment be affirmed at the cost of appellee.
Reversed and remanded conditionally.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.