Staples v. Steed

PELHAM, J.

A statement of the facts and issues involved, in this case will be found in the opinion and *599tlie report of the case on the former appeal. — Staples v. Steed, 167 Ala. 241, 52 South. 646, Ann. Cas. 1912A, 480.

The witnesses Watts and Worthy each testified to sufficient facts showing them to be competent to testify to the proper manner or method to throw a horse Avithout injury to the animal. A man having practical knowledge on such a subject gained from experience is qualified to testify about a matter of this nature Avithout being sliOAvn to be a graduate or skilled veterinary surgeon, or technically learned on the subject. The witness Watts testified: “I have helped throAV stock off unci on for 20 years. I have seen several horses throAvn. Have throAvn several horses and mules.” The witness further specified instances of his having personally engaged in throwing horses, and stated that he Avas 42 years old. This witness having testified to facts showing his competency, it Avas Avithout error to permit the Avitness to state that he knew hoAV to hobble and throw a horse Avithout injuring him. The Avitness Worthy testified that he had seen many horses thrown; that he had helped throAV horses off and on for 20 years, had lived on a ranch several years, and during this time had "helped hobble and throw a great many horses. The witness then stated in detail particular experiences he had with named persons in hobbling and throAving horses. Both of these Avitnesses testified to facts shOAving their knoAvledge and experience on the subject, and the court in alloAving each of them to answer the question, “Do you knoAV how to hobble and throw a horse Avithout injury?” Avas but following the rule of the Supreme Court ■on the admissibility of this testimony as set out in the ■opinion in this ca§e on the former appeal. — Staples v. Steed, 167 Ala. 241, at page 644, 52 South. 646, page 647, Ann. Cas. 1912A, 480, Avhen it Avas said: “The *600opinion of this Avitness [referring to the Avitness Worthy] as to the proper Avay in Avhich to perform the mechanical part of the operation Avas properly received;; its Aveight being left to the jury.” The original record on the former appeal shoAvs that the Avitness Worthy Avas permitted in the trial from Avhich that appeal Avastaken to testify that the way in Avhich that horse Avas; throAvn was not a safe Avay or manner in Avhich to throw the horse, and it was this testimony of the Avitness that was referred to as alloAving the witness “in. effect to testify that the operation involved in the case on trial Avas; negligently performed.” — Staples v. Steed, supra. The record on the present appeal does not contain this illegal testimony.

The statement of the witness Shumaker made in the presence and hearing of the defendant Avhile the operation Avas in progress was admissible as part of the resgestae as Avell as because it was of such a character as; to call for a denial. — Kirby v. State, 89 Ala. 63, 8 South. 110; Raymond v. State, 154 Ala. 1, 45 South. 895. Declarations of a bystander accompanying or connected1 Avith the transaction or event in question are admissible as part of the res gestae. — Young v. State, 149 Ala. 16, 43 South. 100. Where the declaration is connected Avith the main fact or transaction under consideration so as-to illustrate and further its object and' to form in connection with it one continuous transaction, it is admissible as part of the res gestae. — L. & N. R. R. Co. v. Pearson, 97 Ala. 215, 12 South. 176; Masterson v. Phinizy, 56 Ala. 336.

The degree of care required to be exercised by the defendant, and for the failure to observe which he alone could be held legally liable, is correctly stated in given charges Nos. 3 and 15, given at the instance of the defendant, and the refusal to give charge No. 4, for this; *601reason, as well as because it is confused in reciting the degree of care for which the defendant is responsible, is without error.

Charges Nos. 5 and 6 as applied to the facts and evidence in the case were easily calculated to mislead and confuse the jury, and the court cannot be put in error for the refusal of either. Under the evidence before the jury, the plaintiff based his right to recover almost entirely on the tendency of that evidence going to establish his claim of negligence upon the part of the defendant, not in the performance of the operation proper by burning the spavin with hot irons, but in the selection and preparation of the place and the manner of conducting the preliminaries and mode used in throwing the horse preparatory to performing the surgical operation. While in the opinion of this case on the former appeal the throwing preparatory to performing the surgical operation is referred to as “the mechanical part of the operation” (Staples v. Steed, supra, 167 Ala. 244, 52 South. 647, Ann. Cas. 1912A, 480) the evidence in this case, as on the former appeal, affords an inference “that the place selected for throwing the horse, being on the side of a hill, whereas a level spot was available, was so unsuited to the purpose as to cause the horse to be thrown with unusual and unnecessary violence, thereby causing its injury and death.” These charges (5 and '6) in the use of the word “operation,” and limiting the defendant’s liability solely to negligence in performing the operation, exclude as a reasonable and necessary inference the question of liability consequent upon a negligent selection and preparation of the place to perform the operation, and are also calculated to mislead in being taken as an instruction exempting the defendant from liability for negligence in the manner of throwing the horse, and the preliminary preparations, and limiting *602the negligence for which the defendant would he liable to those acts connected alone with performing the surgical operation proper. The charges, being misleading or confusing, were properly refused. — So. Ry. Co. v. Hobbs, 151 Ala. 335, 43 South. 844; A. & B. A. L. Ry. Co. v. Wheeler, 154 Ala. 530, 46 South. 262; B. R. L. & P. Co. v. Moore, 148 Ala. 115, 42 South. 1024.

Charge 10 ignores defendant’s liability for the negligent selection of a place to operate and manner of throwing -the horse, and gives undue prominence to part of the evidence. This charge also invades the province of the jury.

Charges 11 and 16 have the effect of eliminating entirely from the consideration of the jury that part of the plaintiff’s evidence in which he testified that the hands assisting in throwing the horse were the servants of the defendant under his sole direction and control, and for whose acts of negligence the defendant would therefore be responsible.

Charge 12 ignores material parts of the testimony tending to show defendant’s liability, and predicates the defendant’s right to a verdict on part only of the evidence.

Charge 13 is argumentative, and also predicates the defendant’s right to a verdict notwithstanding he might have been negligent in the selection of the place and manner of throwing the horse.

Charge 14 invades the province of the jury, and is argumentative. The court cannot be put in error for refusing charges that state what the jury is or is not authorized to find from the evidence, or that there is or there is not evidence of certain facts.- — Hill v. State, 156 Ala. 3, 46 South. 864; So. Ry. Co. v. Taylor, 148 Ala. 52, 42 South. 625.

Charges which do not assert a proposition of law, but which are mere argumentative statements of facts, are *603properly refused. — Loveman v. Birmingham Ry. Co., 149 Ala. 515, 43 South. 411.

Charge 18 is bad. Charges which single out a certain fact upon which they are hypothesized, and give undue prominence to that fact, may be refused. — M. St. Ry. Co. v. Rice, 142 Ala. 674, 38 South. 857. The proposition asserted in this charge is covered in the given charges.

Appellant’s counsel do not argue or discuss the charges given at the request of the plaintiff and waive any assignment of error based on them. — Harper v. Raisin Fer. Co., 148 Ala. 360, 42 South. 550; 6 Mayfield’s Dig. p. 33, §§ 111, 112.

The rulings of the trial court presented and insisted upon as erroneous by appellant are free from error, and the case will be affirmed.

Affirmed.