Summary
In Bradley v. Lewis, 211 Ala. 264, 100 So. 324, this court refused to reverse for failure to exclude testimony that plaintiff had been "very nervous" since the injury and might be called "a nervous wreck."
Summary of this case from Fleming v. KnowlesOpinion
6 Div. 137.
May 15, 1924.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Tillman, Bradley Baldwin, A. Key Foster, and T. A. McFarland, all of Birmingham, for appellants.
The statement by appellee's husband, who is not a physician, that appellee is a nervous wreck from the accident complained of, should have been excluded on motion of appellant. L. N. Co. v. Landers, 135 Ala. 504, 33 So. 482; Brandon v. Progress Dist. Co., 167 Ala. 365, 52 So. 640; L. N. v. Lee, 140 Ky. 91, 130 S.W. 813; Macon Ry. L. Co. v. Mason, 123 Ga. 773, 51 S.E. 569; Atlanta S. R. Co. v. Walker, 93 Ga. 462, 21 S.E. 48; Deppe v. A. C. L., 154 N.C. 523, 70 S.E. 622; Ala. C. C. I. Co. v. Heald, 154 Ala. 580, 45 So. 686; Scales v. Central I. C. Co., 173 Ala. 639, 55 So. 821; Lawrence v. Kaul Lbr. Co., 171 Ala. 300, 55 So. 111; Taylor v. State, 41 Tex. Cr. R. 148, 51 S. W 1106; Lakey v. State, 206 Ala. 180, 89 So. 605; W. U. Tel. Co. v. Cleveland, 169 Ala. 131, 53 So. 80, Ann. Cas. 1912B, 534; L. N. v. Sharp, 171 Ala. 212, 55 So. 139; Interstate Amusement Co. v. Martin, 8 Ala. App. 481, 62 So. 404; Furbush v. Maryland Cas. Co., 131 Mich. 234, 91 N.W. 135, 100 Am. St. Rep. 605. The court erred in not admitting the photographs of Tidewater car No. 18, taken a few days after the accident complained of occurred. L. N. R. R. Co. v. Hall, 91 Ala. 112, 8 So. 371, 24 Am. St. Rep. 863; Higgs v. M., St. P. S. S. M. Ry. Co., 16 N.D. 446, 114 N.W. 722, 15 L.R.A. (N.S.) 1162, 15 Ann. Cas. 97, Hughes v. State, 126 Tenn. 40, 148 S.W. 543, Ann. Cas. 1913D, 1262; L. N. v. Brown, 127 Ky. 732, 106 S.W. 795, 13 L.R.A. (N.S.) 1135; Maynard v. Oregon R. Co., 46 Or. 15, 78 P. 983, 68 L.R.A. 477; Dyson v. N.Y. N.E. Co., 57 Conn. 9, 17 A. 137, 14 Am. St. Rep. 82; Baustain v. Young, 152 Mo. 317, 53 S.W. 921, 75 Am. St. Rep. 462; Beardslee v. Columbia Tp., 188 Pa. 496, 41 A. 617, 68 Am. St. Rep. 883; K. C. M. B. v. Smith, 90 Ala. 25, 8 So. 43, 24 Am. St. Rep. 753; 10 R. C. L. 1158. The alleged subsequent statement of a conductor respecting a prior accident is outside the scope of his employment, hearsay, and inadmissible under any theory. So. Ry. v. Fricks, 196 Ala. 61, 71 So. 701; Bennett v. Hoffman (C.C.A.) 289 Fed. 797; A. G. S. v. Hawk, 72 Ala. 112, 47 Am. Rep. 403; Luby v. Hudson R. R. Co., 17 N.Y. 131; Adams v. Hannibal R. Co., 74 Mo. 553, 41 Am. Rep. 333; Bank of Phoenix v. Taylor, 196 Ala. 665, 72 So. 264; Brittain v. Vickers, 209 Ala. 391, 96 So. 438.
Black, Harris Foster, of Birmingham. for appellee.
Where a ruling is made by the trial judge, and no exception reserved, nothing is presented for review. Hale v. Helms, 17 Ala. App. 62, 81 So. 841; Am. Ry. Exp. Co. v. Barnes, 18 Ala. App. 295, 91 So. 912; Gen. Elec. Co. v. Ft. Deposit, 174 Ala. 179, 56 So. 802. Photographic reproductions of a scene, taken many days after an event, are not admissible unless conditions were the same when the pictures were taken as the conditions surrounding the event. 10 R. C. L. 1158; 22 C. J. 919. The fact of agency does not prevent a witness from being impeached by a contradictory statement. Central of Ga. v. Rutland, 4 Ala. App. 405, 59 So. 188; So. Ry. v. Smith, 177 Ala. 367, 58 So. 429; 40 Cyc. 2687.
The husband of the plaintiff was asked while a witness:
"What has been her nervous condition since the injury? A. She has been very nervous. You might call her a nervous wreck from it."
Counsel for the defendant moved to exclude "the nervous wreck part." The court overruled the "objection" and noted an exception, though the record does not disclose an exception by counsel. While the court ruled on an "objection" which was not made instead of a "motion" which was made and noted an exception, which the record does not affirmatively show was made by counsel, we may concede that the ruling had reference to the motion to exclude and that there was an exception to the ruling. The motion to exclude went only to "the nervous wreck part" of the reply, not to the first or last portion of the answer. It was, of course, error for the witness to have added the words "from it," as that invaded the province of the jury as to the issue in the case; but the motion to exclude stated only "the nervous wreck part," and did not point out this part of the answer, which the trial court would no doubt have excluded, as the record recites that the trial judge did not hear the words "from it" and which were not mentioned or included in the motion to exclude. This, therefore, brings us to the determination of whether or not it was error for not excluding "you might call her a nervous wreck." Witness had just stated "she was very nervous," and we think that the further statement that she might be called a nervous wreck was, in effect, a restatement or emphasis of the first statement and was not a forbidden opinion or conclusion. In fact, to speak of persons who are extremely nervous as a "nervous wreck" is of ordinary or common parlance, indicative of a highly nervous or excitable condition, and we do not think that the trial court erred in failing to sustain the motion to exclude in the form in which it was made.
The trial court cannot be put in error for excluding the report of the car inspectors of June 15th as to the condition of the step. It may be questionable as to whether conditions were so identical when the inspection was made and when the injury occurred as to make the result of said inspection competent evidence, or whether or not the report had been so identified and verified by witness Pitts as to make it an admissible memorandum in connection with his testimony; but we prefer to justify the action of the court upon a broader and more meritorious ground. The plaintiff's evidence shows that she lost her shoe heel and fell before descending to the step; that the shoe heel got caught by a "jagged or snagged" place in the floor of the car, and not the step or steps. In other words, the only defect shown was in the floor of the car and not the step. Indeed, the plaintiff testified that she did not see anything wrong with the step, and Mrs. Dabner testified that the shoe heel was caught under a jagged piece of metal on the floor of the car. Therefore the condition of the step when the inspection was made a week later was not relevant.
For the same reason, the trial court did not err in excluding the photographs when offered solely to show the condition of the steps at the time of the accident. Nor was there error in excluding them when offered for the purpose of showing both the condition of the step and the "immediate floor where it is claimed the accident occurred." It being irrelevant as to the step this should have been disconnected from the other, especially in view of the fact that the court offered to admit the photographs to show the general construction of the car and defendants' counsel preferred offering them for a limited or restrictive purpose. Moreover, we think the exclusion of the photographs can be justified because of the failure of the defendant to establish an identity of conditions at the time the accident occurred and when the photograph was made several weeks afterwards.
The admissions or declarations of the conductor after the accident, and not a part of the res gestæ, were, of course, not admissible as original or independent evidence; but, being contradictory of the evidence given by him as a witness, were admissible after a predicate had been laid for the purpose of impeachment or contradiction.
We cannot put the trial court in error for refusing the motion for a new trial under the long recognized and often followed rule laid down in the case of Cobb v. Malone, 92 Ala. 630, 9 So. 738.
The judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, GARDNER, and THOMAS, JJ., concur.