Louisville N. R. Co. v. Abercrombie

84 So. 423, 17 Ala. App. 233, 1919 Ala. App. LEXIS 221

• Court: Alabama Court of Appeals
• Decided: November 18, 1919
• Docket: 6 Div. 571.
• Status: Published

Opinion

SAMEORD, J.

This is the second appeal in this case, L. & N. R. R. Co. v. Flenn, 201 Ala. 299, 78 South. 75. On that appeal it was held:

“In an action for injuries to plaintiff when her buggy was overturned through her horse becoming frightened at the whistle and rush of a train, whether the necessary causal connection had been shown between the railroad’s failure to comply with Code 1907, § 5473, as to warning of the approach of the train, and plaintiff’s injury, was for the jury on evidence that the railroad did not comply with the statute, that plaintiff was not otherwise apprised of the approach of the train, and that for such reason she failed to take precautions which would have avoided her injury.”

• The facts as shown in this record are not materially different from the facts as stated in the opinion on former appeal, where it was held that the jury might infer that appellant did not comply with the statute, requiring the sounding an alarm on approaching the crossing, that appellee was not otherwise apprised of the approach of the train, and for that reason failed to take precautions which would have avoided injury. This would bring the ease within the rule laid down in So. Ry. Co. v. Crawford, 164 Ala. 183, 51 South. 340; Seaboard Air Line Ry. v. Emfinger, 16 Ala. App. 265, 77 South. 415.

[1, 2] The phrase in the complaint, “with the intention of crossing said railroad at the said public crossing,” which defendant moved to strike, was an immaterial allegation. The-statutory signals required of,railroads inure to the benefit of any one who happens lawfully to be within the zone of danger by a nonobservance of the statute. S. A. L. Ry. v. Emfinger, supra; A. G. S. R. R. Co. v. Chapman, 80 Ala. 615, 2 South. 738. The testimony in this case was in sharp conflict, the trial court and the jury had the witnesses before them, and there is nothing in this record to impress the court that the verdict was contrary to the great weight of the evidence. Under such circumstances, the trial court will not be put in error for refusing to set aside the verdict and to grant a new trial on the ground that the verdict was contrary to the evidence.

[3-5] The evidence before the court showing the absence of Dr. Bland from the state was sufficient as a predicate for the introduction of his testimony on a former trial. Jacobi v. State, 133 Ala. 1, 32 South. 158. The question -asked the defendant’s witness Lane, by defendant’s counsel, “That' blast of the whistle scared the horse, didn’t, it?” to which the objection was sustained, was objectionable for several reasons: First, it was leading; second, it called for the conclusion of the witness as to the very question being submitted to the jury. The latter reason also applies to the other question propounded to the witness Lane, as to his opinion 'as to what produced the fright of the horse. In addition to this, the court will not be put in error for sustaining an objection to a question, where the answer might or might not be legal, and the party seeking the evidence fails to inform the court as to what he expects the answer to be.

[6] There are 56 separate assignments of error in this case, but all of them are abandoned except such as were argued in brief of appellant’s counsel, and in considering the case we have so treated them.

We find no error in the record, aud the judgment is affirmed.

Affirmed.