Lawson v. Mobile Electric Co. , 204 Ala. 318 ( 1920 )

I concur in the affirmance of this judgment upon the ground, presented by the giving of the general affirmative charge (with hypothesis) for the defendant, that the wrong or negligence charged in the complaint was not shown to be the proximate cause of the injury and death of the intestate.

In the brief in support of the application for rehearing it is insisted that there is a conflict between the pertinent doctrine of Harris v. N.C. St. L. Ry., 153 Ala. 156,44 So. 962, 14 L.R.A. (N.S.) 261, touching the conclusiveness of the undisputed testimony of expert witnesses, and the pronouncement made on that subject in Robinson v. Crotwell,175 Ala. 194, 205, 57 So. 23. In the Harris Case it was expressly held that, where the subject of expert testimony is one on which the jury cannot be presumed to have any opinion of their own, and such evidence is undisputed, "the defendant is entitled to a verdict"; whereas, in Robinson v. Crotwell it is expressly held that under such circumstances the opinions of expert witnesses are not binding upon the jury, that the jury are entitled "to base their verdict upon their own judgment of the facts," citing the apt authorities afforded by McAllister's Case, 17 Ala. 434, 52 Am. Dec. 180, and Andrews v. Frierson,144 Ala. 470, 39 So. 512. Had the view taken and pronounced in Robinson v. Crotwell been expressed in the Harris Case, there would have been no difference of opinion in that case. That was, in fact, the basis for the dissenting view of Tyson, C. J., and the writer in the Harris Case.

It results, therefore, that the doctrine declared in Robinson v. Crotwell and repeated in the opinion on present appeal supersedes the pertinent, pronouncement, to a different effect, in Harris v. N.C. St. L. Ry. The idea that the hypothesis to the general affirmative charge given for a party litigant still leaves the jury to determine the matter as an issue of fact is a distinct departure from the view, always prevailing in this court, that the giving of the general affirmative charge, with hypothesis, is a declaration of law by the court, just as its action in sustaining a demurrer to the evidence is a pronouncement of law by the court. Tabler v. Sheffield Land Co., 87 Ala. 305, 309, 6 So. 196; Weil v. State, 52 Ala. 22; Bridges v. Tenn. Co., 109 Ala. 294, 19 So. 495, among many others. It is settled here that a verdict opposed to instructions given by the court is erroneous, and for that reason a new trial should be awarded. Fleming v. L. N. R. R. Co., 148 Ala. 527, 41 So. 683; Wolf v. Delage, 150 Ala. 445,46 So. 856.

Expert testimony is admitted for the sole purpose of enlightening the jury and aiding it in arriving at a correct conclusion in the premises, but not, though unimpeached, to control its judgment. See authorities cited on pages 149, 150, of 153 Ala., on pages 965, 966, of 44 South., and also Robinson v. Crotwell, supra. If, however, the doctrine of the opinion on present appeal and of Robinson v. Crotwell is accepted as still leaving to the jury the determination of the issue involved, it is evident that in such cases the party against whom the affirmative charge, with hypothesis, is given should be accorded an explanatory request that, though the affirmative charge, with hypothesis, has been given his adversary, still the jury is entitled to pass upon the evidence and to accord it such credit as their judgments approve.

BROWN, J., concurs in the foregoing.