The Montgomery advertiser., 1903-02-04
BIRMINGHAM RAILWAY AND ELEC


 BIRMINGHAM RAILWAY AND ELEC-
 TRIO CO.,, V. ELLARD.
 Action Against Street hallway ComY any
 by Passenger to Recover Damages for
 Personal lnjuries.-Appeal from Jeff
 fersoh Circuit Court
 l. Trial and its incidents; examination of witness.-In the examination of witt ness. 1t is the duty of the court to see that orderly examination is conducted and that the witness is not unduly hastened; and if, in the cross-examipation of a wit ness she asks to he given time. and the court says to the counsel examining her to give her time to answer the questions, to which the counsel replies that he has given the witness plenty of time. 1t Is not error for the court to say to counsel, In the presence of tho jury, "Sometimes you don't" such matters being within the discretion of the court.
 ?. Action for personal injuries; compe- tercy of evidence; expert testimony.-In an action against railroad company by a passenger to recover damages for per- so;.al injuries. alleged to have been caused by the negligence of tho dsfend- ant. In which. among other injuries. the plaintiff claimed to have suffered from sprained ankle. where the plaintiff in troduces physician who had examined her and he tells of the plaintiffs condi- tion as he found it, and said witness was cross-examined as to the plaintiffs abil- ity to walk with a sprained ankle. 1t Is not error for the plaintiff. on the re- direct examination. of said witness to ask his medical opinion upon hypothecated question designed to support his theory or version of the facts connected with plaintiffs injury and her conduct during the day of the injury. 1t being shown that after the alleged injury she walked some distance,
 3. Same: same.-In. such a case, where the evidence for the plaintiff tended to show that by reason of the injuries com plained of. she was permanently injured and her health greatly impaired. but it was claimed by the defendant that the condition of the plaintiffs health subse- duent to the accident was substantially the same as 1t was prior thereto, and on cross-eXamination by the defendant of the plaintiff as witness, 1t was attempted to be shown that she had, for a long time. been laboring under similar ailments to those which she claimed to be suffering from as the result of the accident com plained of. it Is not error for the court to allow the plaintiff to be recalled and examined touching the condition of her health prior to the injury.
 4. Same; same.-In an action against a street railroad company by a passen- ger to recover damages for personal in- Jurtes. alleged to have been caused by the negligence of the defendant while the plaintiff was attempting to board, 5one of the defendants cars, tt Is not competent to ask witness being examined. wheth- CT or not he saw anything happen at the time of the accident that would have a fn calling for the conclusions of the wit ness.
 5. Trial and its incidents; examination as to violation of the rule.--where a wit ness in a case has been put under the rule, and upon the subsequent examina- tion of one of the witnesses her answers have a tendency to show that after hav- ing been SO put under the rule. the wit ness violated the courts instructions by talking to some one about the case, 1t is not improper or erroneous for the court to permit such witness to be asked as to such alleged violation. and as to whether or not she understood the in- structions of the court when she was put under the rule.
 G. Action for personal injuries: admis- sibilty of evidence.-In an action against a street railroad company by passenger to recover damages for personal injuries alleged to have been caused by the neg ligence of the defendant. in which it was claimed by the plaintiff that by reason of the injuries complained of her health had been permanently injured and inn paired, where, upon the examination of a witness for the defendant said witness testified to facts tending to show that before the accident the plaintiff was a weak and delicate woman. it is permis- sible for the plaintiff, upon cross-exami- nation of such witness. to prove by her facts which have a tendency to show that the plaintiff was not in bad health prior to the accident.
 r. Trial and it's incidents: what not suf- ficient insistence in argument on appeal upon assignments of error--Where the assignments of error aHe based upon ru- ings of the trial court upon questions propounded to witness, the insistence in argument and brief of counsel that each question was improper and that the court erred in everything defendants objection thereto" is not such insstence as will require the review of the questions sought to be presented by such assignments of error.
 &. Action for personal injuries; admis- sibiIity of evidence; expert testimony In an action against a street railroad company by a passenger to recover dam ages for personal injuries. which are al- legged to have permanently injured plaint- fir. and materially impaired her health, where 1t is claimed by the defendant that the plaintiff was suffering from hysteria augmented by the pendency of her suit. md there was some evidence introduced hy defendant tending to sustain the claim. if a physician introduced as a witness for the defendant testihes to the plaint- frs suffering from hystera, and gives his int a inc cause tcria if is not incompetent for the wit ness. on the cross-eXamnation Of such witness. to ask him lis a patient any more responsible for hysterical condi- ton than for any other condition'
 9. Same; same; same.-ln such case where the physician being examined as to the hysterical condition or the piaint- if. stated that ho did not say that per sons who pretended there is something the matter with them, while thelr Ia" suits are pending are necessarily hyster- ical, it is not improper or incompetent TOT the plaintiff to ask such witness. Are they hysterical?
 1O Expert witness; competency can not be inquired into.--Where physician mas been examined as an expert in the trial of a case, the. opinion of other phys'- clans as to whether or not such witness was qualified to draw correct medical conclusions can not be introduced in eVl- dcnce.
 II. Action for personal injuries; admis- sibility of testimony of physician.-1n an action against a street railroad company