Erwin v. Birmingham Ry., Light & Power Co.
Erwin v. Birmingham Ry., Light & Power Co.
Opinion of the Court
v [4] Plaintiff asked defendant’s witness Rothold this question: •
“State if the car run back that way there, to stop it either by applying the brake or by suddenly applying the current, if that wouldn’t cause a violent movement of the ear, or a sudden stop?”
The question was excluded on defendant’s objection that it was irrelevant, and called for a conclusion of the witness. It will suffice to justify this ruling to say that Rothold was a merchant tailor, and was not competent to give the opinion called for — clearly a matter only for an expert. Again, the question was not predicated upon a backward movement by the car of only about a foot, the distance plaintiff declared it moved in, this instance, and it did not appear that the answer would have been relevant to such a limited movement, with a momentum that must have been very slight.
■
“Isn’t it a fact, standing with the brake set there with that car, and the brake is released the least little bit, the car will move?”
This question was excluded on defendant’s objection, and thereupon plaintiff offered to-show by the witness that releasing the hand brake the least bit, enough to let the car run back, would cause a jerk of the car on that grade. This was also excluded.
The purpose of the testimony thus sought to be elicited was to show how the jerk, if any, was caused. But there was no testimony tending to show that the hand brake was released to, any extent on this occasion. Plaintiff’s proposition necessarily is that if there was a jerk it may be inferred that the brake was released, and if the brake was released it may be inferred that there was-probably a jerk. Thus the major proposition is sought to be supported by an inference from an inference, which is itself drawn from the major proposition, which is but reasoning in a circle.
We think it is clear that, in the absence of any evidence that the hand brake was released, the abstract effect of such a release in general was not admissible in evidence in this case, and all of the testimony in this regard might properly have been excluded. The-vital question was whether the car moved, and this question was manifestly determined by the jury adversely to plaintiff’s contention, upon fair instructions and a fair consideration of its merits. So that, even if any technical error were shown, we would not feel justified in reversing the judgment therefor.
We have considered the only questions argued in brief, and, finding no error of which plaintiff can complain, the judgment will be affirmed.
' Affirmed.
Reference
- Cited By
- 2 cases
- Status
- Published