Southern Railway Co. v. Cunningham , 152 Ala. 147 ( 1907 )

TYSON, C. J.

The complaint originally contained two counts. It was sought by each of them to recover damages for personal iniuries suffered bv plaintiff, caused by the negligence of the defendant while he was a passenger upon one of its cars. Tn each it is alleged that the iniury occurred on, to wit, the 3d day of March, 1903, near Huntsville, in Madison county, in this state. In the first the character of the injuries inflicted is described in no other way than by the word “personal.” In the second it is alleged that plaintiff received personal injuries by having his “back severely sprained and bruised, and his legs, hips, and arms bruised and otherwise injured.” More than one year after the filing of the complaint, and, of course, after the cause of action arose, the plaintiff was permitted to amend his complaint by adding a third count. The only material differences between this count and the second may be stated to be these: In this one the time of the occurrence of the alleged injury is alleged to have been on the 23d day of March, 1903, and the injuries are alleged to be permanent, and damages for mental pain and expense for medicine and medical attention in the effort to heal and cure the injuries are claimed. The amendment was objected to by defendant, and the plea of the statute of limitations of one year was interposed as a defense to the added count. It is insisted that defendant should have been allowed the benefit of this defense, because the added count was a departure from the cause of action set up in the first and second counts; in short, that it introduced a new cause of action or claim. We do not think so. We regard the amended count as merely curing a defective description of the cause of action as laid in the two original counts, and therefore related back to the commencement of the suit. — Hess v. Birmingham Ry., L. '■& P. Co., 149 Ala. 499, 42 South. 595; Chambers v. Talladega Beal Asta-te & Loan Association, 126 Ala. 296, 28 South. 636; Manchester Fire Assurance Oo. v. Feibel-man, 118 Ala. 308, 23 South. 759. If it be true, as contended by appellant, and which we regard as correct, that the date averred in the first and second counts was material, then no recovery was or could have been had upon them, and the overruling of the demurrer to them, if error, was clearly innocuous. — Going v. Ala. Steel & Wire Co., 141 Ala. 537, 37 South. 784.

Numerous exceptions were reserved upon the trial to the admission and exclusion of' testimony, and many of the rulings of the court with respect thereto are' assigned as error; but quite a number of these assignments are not insisted upon. It is true they are referred to in brief of counsel for appellant, but the reference amounts to no more than the assignment of error itself. Indeed, in some instances the assignments are simply bunched, burdening this court to separate the several rulings and to ascertain as best we can which of them, if any, are meritorious. This we.must decline to do.

One of the contested issues of fact was whether the plaintiff was injured at all, and, if injured, whether the injury was temporary or permanent. As shedding light upon this issue it was entirely competent for the plaintiff to testify that after the alleged injury he took medicine to cure or relieve his suffering. So, likewise, there was no error in permitting witnesses for plaintiff to testify that he “was apparently suffering pain.” — So. & N. Ala. R. R. Co. v. McLendon, 63 Ala. 266.

The purpose of the hypothetical question propounded to Ur. Uryer was to get his opinion as an expert as to whether the plaintiff’s injuries were permanent. The court, it seems, sustained an objection to the question because it hypothesized facts not shown by the evidence. Whether this ruling was ei’roneous it is unnecessary to here determine, since it appears that defendant had the full benefit of the witness’ opinion in answer to other hypothetical questions propounded to him.

It is not perceivable how the defendant’s cause could have been prejudiced by the ruling of the court in allowing plaintiff to introduce in evidence the original subpoenas for the witness Hall and the sheriff’s return thereon. This action on the part of the plaintiff was doubtless induced by the defendant’s cross-examination of the witness Hall, showing that he had not been subpoenaed in the cause, which was wholly immaterial.

There was no error committed in allowing the American Tables of Mortality to be introduced in 'evidence, in view of the fact that under the testimony it was a controverted question whether the injuries claimed to have been suffered by plaintiff would be temporary or permanent. — Vicksburg R. R. Go. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, 80 L. Ed. 257; L. é N. R. R. Co. v. Mother-shed, 97 Ala. 261, 12 South. 714; Birmingham Mineral R. R. Go. v. Wilmer, 97 Ala. 170,11 South. 886.

Under the testimony whether the defendant was guilty of negligence which caused plaintiff’s injuries as alleged in the third count of the complaint, and if plaintiff sustained -the injuries as alleged whether they were temporary or permanent, were clearly questions for the determination of the jury. The affirmative charge requested by defendant was, therefore, properly refused. — Montgomery & Eufaula Ry. Co. v. Mallette, 92 Ala. 209, 9 South. 363, and cases there cited. This case also fully sustains the correctness of the first part of the oral charge of the court, to which an exception was reserved, which is criticised as exacting too high degree of care on the part of the defendant as a carrier. See. also, Mobile Light & R. R. Co. v. Walsh. 146 Ala. 295. 40 South. 560.

Under the evidence it was open to the jury to find that the collision was caused by the negligence of the fireman or flagman of the freight train crew, who was sent forward to flag the approaching passenger train, upon which plaintiff was a passenger, in n.ot giving the signal at a sufficient distance between the two trains, in order that the approaching train might be stopped in time to prevent it colliding with the other, and not to any want of care on the part of those manually operating either of the trains. In vieiv of this tendency of the evidence, written charge designated “B,” requested by defendant, was properly refused. Furthermore, it is not clear to which of the trains reference is made in the latter clause of the charge.

Conceding the correctness of charge 6 and its applicability to the case in hand, without deciding either proposition, the principle declared in it was asserted in charges which were given at defendant’s request.

We find no error in the record of which the appellant can complain, and the judgment must he affirmed.

Haralson, Simpson, Anderson and Denson, JJ., concur. Dowdell, J., dissents.