6 Div. 987.
May 15, 1924.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellant.
Appellant's motion for a continuance, on the grounds that opposing counsel asked grossly improper questions and offered to prove improper and prejudicial matters, should have been granted. Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565; Powe v. State, 19 Ala. App. 215, 96 So. 370; Maryland Cas. Co. v. McCallum, 200 Ala. 154, 75 So. 902; Davis v. State, 18 Ala. App. 482, 93 So. 269; Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701; Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A.L.R. 1387; Florence Cot. Co. v. Field, 104 Ala. 471, 16 So. 538. Appellant could only be liable under the doctrine of respondeat superior, and could not be liable unless the engineer would be if he were defendant. Lakeshore v. Goldberg, 2 Ill. App. 228; Emma Silver Min. Co. v. Emma, etc., Co. (C. C.) 7 Fed. 401; Emery v. Fowler, 39 Me. 326, 63 Am. Dec. 627; K. C. v. Mitchener, 85 Mo. App. 36; Cuneo Imp. Co. v. American Imp. Co. (D.C.) 241 Fed. 421; Cressler v. Brown, 79 Okl. 170, 192 P. 417; So. Ry. v. Harbin, 135 Ga. 122, 68 S.E. 1103, 30 L.R.A. (N.S.) 404, 21 Ann. Cas. 1011. The burden of proving wantonness is on the plaintiff. B. A. v. Campbell, 203 Ala. 296, 82 So. 546; A. G. S. v. Smith, 196 Ala. 77, 71 So. 455.
Weatherly, Birch Hickman, of Birmingham, for appellee.
There was no error in the question whether the freight house was removed after the accident. B. U. Ry. Co. v. Alexander, 93 Ala. 133, 9 So. 525; Jackson Lbr. Co. v. Cunningham, 141 Ala. 206, 37 So. 445. It was permissible for appellee to cross-examine appellant's witness as to the custom of caution in passing over the point in question. Hilburn v. McKinney, 209 Ala. 229, 96 So. 61. It was discretionary with the trial court to grant or deny the motion to withdraw the case from the jury. T. C. I. Co. v. Spicer, 206 Ala. 141, 89 So. 293.
American courts are practically unanimous in holding that —
"Evidence of changes or repairs made subsequently to the injury, or as to precautions taken subsequently to prevent recurrence of injury, is not admissible as showing negligence or as amounting to an admission of negligence." 29 Cyc. 616; L. N. R. R. Co. v. Malone, 109 Ala. 509, 20 So. 33; Going v. Ala. S. W. Co., 141 Ala. 537, 551, 37 So. 784; Frierson v. Frazier, 142 Ala. 232 (5), 37 So. 825.
The offer by plaintiff's counsel to show that the small freighthouse — referred to by witnesses as standing near the intersection of Wood street and the railroad, and tending to obscure the engineer's view of the truck as it approached the crossing — had been removed since the accident, was, of course, properly rejected. Appellant's complaint is that the mere offer to prove was sufficient to impress the jury with the idea of the existence of the fact, and that they would likely consider it as a fact to the prejudice of defendant, notwithstanding the judge's instruction that they should not consider it.
If the case had gone to the jury on any issue of negligence to which the location of the freighthouse was material, some degree of prejudice might be inferred from the suggestion of its removal after the accident. But the issue being solely one of wanton or willful injury, determinable by the conduct of the engineer without reference to the location of this building, we are unable to conceive of resulting prejudice to defendant. More likely, if the matter was noticed by the jury at all, it was of beneficial effect. The nature of the issue, and the character of the testimony, make the case very different from Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565, and other cases cited and reviewed by counsel for appellant.
The ordering of a mistrial and a continuance for such a cause must be left largely to the discretion of the trial judge, and we do not think his action on this motion was an abuse of that discretion. Tenn. Co. v. Spicer, 206 Ala. 141, 89 So. 293; Thames v. L. N. R. R. Co., 208 Ala. 255, 94 So. 487.
A similar question is presented with respect to the conduct of plaintiff's counsel in asking defendant's engineer, on his cross-examination, as to another collision at the Tidewater crossing shortly after the collision here involved. The matter of the other collision was, of course, utterly foreign to the issues of this case, and could throw no light on the culpability vel non of the engineer who was operating this train. Certainly, any independent suggestion of such an occurrence for the purpose of lodging it in the minds of the jury as a prejudicial factor to influence their decision would have been highly improper on the part of plaintiff's counsel. Whether the prejudice that might result would be of such a character that the admonition of the trial judge — which was full and complete — to disregard it would not have served to eradicate it from the minds of the jury, might be a debatable question. It is to be observed, however, that the engineer had testified on his direct examination that —
"Every engineer who has run over this line of road, especially when we approach this here street car line, commonly known as Tidewater, is under control."
This was a sweeping statement, and of a fact outside of the issues of the case, which was not proper for the consideration of the jury. On cross-examination it was proper for plaintiff's counsel to ask the witness such questions as were calculated to test his knowledge and candor, and we do not feel authorized to infer that counsel's purpose in asking this question was other than bona fide for the making of such a test. The settled rule is that the character and extent of such a cross-examination, involving the injection of collateral matters appropriate to the end in view, is entirely within the discretion of the trial judge, though subject to review for palpable abuse.
"Defendant by way of cross-examination proved by the witness Chandler that he had been crossing at this ferry all his life, and had never seen any pole, chain, or gate at the rear end of the boat, nor had he seen a pair of mules, a single mule, horse, or ox back off the boat. On redirect examination the witness was asked if he was there at the time Dr. Lusk's horse fell in the river off the boat. The defendant's objection being overruled, the witness answered, 'No; I was not there.' It is urged this evidence is objectionable, as assuming a fact which had not been proven. In view of the cross-examination, we are persuaded that this question was largely a matter resting within the discretion of the trial court, and that no reversible error appears."
If, as we think, the allowance of the question was within the range of the trial judge's discretion, the mere asking of the question by counsel cannot be regarded as an impropriety, and hence would not require the penal action invoked by counsel's motion for a continuance of the cause, or by his motion to set aside the verdict — action which, so far as this ground was concerned, was within the sound discretion of the trial judge.
Refused charge 26 obscurely embodies a correct proposition of law. Obviously, whenever the master, whether a corporation or an individual, is guilty of a tort through the misfeasance or willfully wrongful conduct of a servant, the servant is for the same conduct personally guilty and liable. Wright v. McCord, 205 Ala. 122, 125, 88 So. 150. And, vice versa, when the conduct of the servant does not render him personally liable, it cannot impose liability upon the master under the doctrine of respondeat superior. N. O., etc., R. Co. v. Jopes, 142 U.S. 18, 12 Sup Ct. 109, 35 L.Ed. 919. Juries should be governed in their conclusions by the law and the evidence, and not by the class, color, or condition of the parties. Nevertheless it is not proper to give an instruction in the form of this one, for cases must be tried between the parties before the court, and not determined upon a consideration of what the jury would do if the issue were between the plaintiff and some other defendant. The charge in question is abstract, argumentative, and possibly misleading and confusing.
Refused charge 34 was fully covered by the oral charge and given charge 25.
Refused charge 29 was specifically covered by the oral charge.
Refused charge C is faulty in its misleading predicate that the wanton injury charged must be equivalent to intentional injury. Vessel v. S. A. L. Ry. Co., 182 Ala. 589, 594, 62 So. 180
"Wanton injury" is the legal and moral equivalent of "intentional injury," but their elements are different, and proof of the one would not suffice for proof of the other.
We have examined the evidence with great care, and we find no reason for disturbing the finding of the jury as to the money value of the injury done to plaintiff's truck. While the testimony was conflicting, there was ample support for the verdict.
Finding no error in the record, the judgment will be affirmed.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.