Windham v. Newton
Windham v. Newton
Opinion of the Court
Appellee sued appellant to recover damages for personal injuries the result of a collision between tbe bicycle of Xilaintiff and the automobile of defendant, in ivhich respectively they were riding. The automobile was proceeding along Fourteenth street, and the bicycle going west along Fifth avenue, in the city of Birmingham, when the collision occurred at the junction of said thoroughfares.
Plain tiff’s evidence tended to show that the automobile at the time of the accident \vas going at a high and dangerous speed in view of the existing conditions, and that upon reaching Fifth avenue it swerved, as if to go into the atenué, and then suddenly turned back into Fourteenth street, causing the machine to skid and collide with xfiaintiff’s bicycle.
The defendant’s evidence tended to show that the automobile was traveling at a slow *259 and moderate speed, and was being bandied carefully, that plaintiff had a skirt or cloth over his head, which prevented him from seeing defendant’s automobile, and that he ran his bicycle into the right hind wheel of the automobile.
The trial resulted in a verdict and judgment for plaintiff. Defendant appeals from that judgment, assigning numerous errors. Only a few of these are argued, possibly because the others are clearly without merit.
One of the main contests on the trial was whether or not the defendant owned the automobile, he contending that it was the property of his wife, and the plaintiff that it was defendant’s property. On this issue the court allowed in proof a certified copy of an application, purporting to have been made by defendant, for a state license to operate the automobile in: question. The defendant insists that such action was error to reverse, maintaining that the certified copy was not admissible, because the statute requires such an application to be verified by affidavit, and this copy did hot show that the original was so verified.
Section 3983 of the Code provides:
“All transcripts of books or papers, or parts thereof, required by law to be kept in the office of any public officer, when, certified by the proper custodian thereof, must be received in evidence in all courts; and it is no objection to such transcript that the book from which it is taken is a copy of office books belonging to the United States.” ' ‘
The defendant excepted to several parts of the concluding argument of plaintiff’s counsel, and insists that the actioh of the court in declining to exclude them was error to reverse this judgment. Among the remarks objected to were these:
“The certificate of the secretary of state shows that the license was paid by the defendant.”
“Why, if we had sued this woman [referring to defendant’s wife], she would have come into the court under the laws of the state of Alabama and said the automobile belonged to her husband, or was loaned to him at the time.”
“Now, gentlemen of the jury, when the plaintiff asked for those names and addresses, the defendant said it was not relevant, and declined to answer.”
“Why, these men considered it a trifling thing for the boy to have his leg crushed and the bones to come out.”
Remarks of counsel which will be sufficient to reverse a case must be made as of fact, and the fact must be unsupported by the evidence. Courts should not shackle discussion, nor should they allow counsel' to become unsworn witnesses. Hobbs v. State, 74 Ala. 39.
We are not prepared to say that there was any reversible error in the rulings declining to exclude argument -of counsel.
We are not willing to say that there is in. this record no evidence that would authorize a jury to find that the injury was wantonly inflicted; that was' certainly a question for the jury; hence the requested charges seek *260 ing to take that issue from the jury were properly refused.
We deem it unnecessary to separately treat the other assignments of error. They have been carefully examined seriatjm; and we find no error as to any one which would compel, or even justify, the reversal of this judgment.
Affirmed.
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