This is an appeal by defendants from a judgment of the trial court granting plaintiff's motion for a new trial. Plaintiff sued for injuries received while he was a pedestrian crossing U. S. Highway 31 in Warrior, and he was hit by the truck of defendant Harvey Ragland Co. while being driven by defendant Laminack. The complaint was in two counts, but the wanton count was withdrawn and the cause was submitted to the jury on the count charging simple negligence. The jury returned a verdict in favor of defendants, and the trial court granted plaintiff's motion for a new trial.
The motion for new trial contained 72 grounds. In the ruling on the motion the trial court stated in part:
We agree with the trial court that the grounds specifically mentioned are without merit, and we discuss only those grounds which the trial court considered as meritorious in granting the motion for a new trial. If there was any proper ground in the motion, the court's ruling on the motion was correct. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224.
But here the court expressly held that the evidence was substantial and "completely sustained the verdict that was rendered." When so, the following from Alabama Great Southern R. Co. v. Gambrell, 262 Ala. 290, 78 So.2d 619, 621, is applicable:
Grounds 14 and 15 are concerned with rulings of the court during the crossexamination of Highway Patrolman Boutwell, who on direct had testified, without objection, to some statements the driver Laminack had made to him.
"Mr. Perdue: We object to that, hearsay.
"Mr. Perdue: Same objection.
"The Court: Same ruling.
"A. Ten miles an hour."
Assuming, without deciding, that the court erred in these rulings, it was rendered harmless by later evidence. Plaintiff introduced Laminack's answers to interrogatories which stated the speed exactly as testified to by Patrolman Boutwell. Laminack testified to the same speed at the trial. Three other witnesses, two for plaintiff and one for defendant, testified without objection as to the speed Laminack was driving at the same time and place, and their estimates were within five miles per hour of Laminack's, and all estimates were far below the lawful speed limit in effect at the place of the accident. Prejudicial error may not be predicated upon the admission of evidence which has been admitted without objection or motion to exclude at some other stage of the trial. Foster & Creighton Co. v. St. Paul Mercury Ind. Co., 264 Ala. 581, 88 So.2d 825; Mobile City Lines v. Hardy, 264 Ala. 247, 88 So.2d 393; Bailey v. Tennessee Coal, Iron & R. Co., 261 Ala. 526, 75 So.2d 117; Lindsay v. Barton, 260 Ala. 419, 70 So.2d 633.
Defendant offered the highway patrol report into evidence three times, and at another time made the following remark: "We object unless he (opposing counsel) will let us introduce the report." The trial court properly sustained plaintiff's objections. Pike Taxicab Co. v. Patterson, 258 Ala. 508, 63 So.2d 599. Appellee contends that it constitutes a ground for a new trial if counsel, in disregard of the court's ruling that a certain line of evidence is inadmissible, persists in attempting to get such evidence before the jury to the prejudice of the unsuccessful party. This principle was stated and applied in Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389, 393. The questions asked there were both repeated and prejudicial, and this court said that:
We do not think that the situation and circumstances in the Blackwell case are similar to those in the instant case. The patrolman had testified to many facts from the report, and others had testified to the same facts. There is a great difference in making three separated offers of a Highway Patrol report and the following small part of the prejudicial questions asked in the Blackwell case, where plaintiff was suing for burns received while a patient in the hospital:
We are unable to say that an "ineradicable impression" had been left on the minds of the jury or that a prejudicial atmosphere against the plaintiff was developed by the offers into evidence of the report, and no reversible error appears in this connection.
Ground 41 is based on the following:
Appellee contends that the remark—"the statement isn't made in good faith"—constituted an attack upon the sincerity of counsel for appellee and cites Sinclair v. Taylor, 233 Ala. 304, 171 So. 728; Birmingham Electric Co. v. Ryder, 225 Ala. 369, 144 So. 18, and Birmingham Railway, Light & Power Co. v. Drennan, 175 Ala. 338, 57 So. 876. In the latter case, plaintiff's counsel, in closing argument, said to the jury: "I know Hugh Morrow, and I know what I am going to tell you about
Here, the court also ruled in favor of appellee and the first complaint was made on a motion for a new trial. It has long been the rule that where no objection is made to remarks of counsel, it is too late to urge them as reasons for a new trial at a later date, Louisville & N. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 So. 760 and Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80; but there is an exception. "An exception to the general rule requiring appropriate objection or motion invoking corrective instruction or action by the trial court is where the remark or argument of counsel is so grossly improper and highly prejudicial to the opposing party as that neither retraction nor rebuke by the trial court would have destroyed its sinister influence." McLemore v. International Union, 264 Ala. 538, 88 So.2d 170, 174; Colquett v. Williams, 264 Ala. 214, 86 So.2d 381; Anderson v. State, 209 Ala. 36, 95 So. 171, 179.
That brings us to the question of whether the remark that "the statement isn't made in good faith" was so grossly improper and highly prejudicial that the substantial rights of the plaintiff were probably injuriously affected. It is our opinion that it was not, and that it does not come within the circumstances and the holding in the Drennan Case, supra. We consider the remark to be improper but not of such grossness as to require the granting of a motion for a new trial merely because it was made.
Grounds 43 and 44 are also concerned with rulings pertaining to questions about brakes. The trial court sustained an objection to a question which was not very clear, but the error, if any, is harmless because the fact sought had been established prior to this question and was also subsequently established, Stewart v. Weaver, 264 Ala. 286, 87 So.2d 548 Griswold v. Duke, 224 Ala. 402, 140 So. 427. There was not only no ruling by the trial court on the question made the basis of ground 44, but the question was withdrawn by plaintiff leaving nothing for review.
Ground 42 is concerned with a remark made by the trial court during the crossexamination of defendant's witness Speegle, who was riding in the cab with the driver of the truck when the plaintiff was injured.
"A. There probably was. There is a curve coming down there.
"Q. Are you familiar with what the double yellow line means?
"A. Yes, sir.
"Q. It means you are not to cross over the center?
"A. Yes, sir.
"Q. But you did cross over?
"Mr. Allen: Just a minute. We object to that, Your Honor.
"The Court: All right, go ahead."
We agree with the court that crossing the double yellow line had no application in the instant case. We know that yellow lines in this state designate no passing zones under Tit. 36, § 58(7), Code 1940, as amended. But this section was not adopted for the benefit of pedestrians. The rule in Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471, and McCloud v. Williams, 257 Ala. 611, 60 So.2d 339, 341, is applicable. In the latter case it was said:
Appellee cites the case of Reid v. McDevitt, 163 Miss. 226, 140 So. 722. But there the question was concerned with the center of the highway. Had the question here been limited to the center line of the highway—"the white spotted line," there would have been no occasion for the court's remark.
Moreover, the plaintiff could not possibly have been injured by the court's ruling or remark. Elsewhere Speegle's testimony shows that the truck was driven to the left of the center line of the highway. This was also what he said in plaintiff's exhibit 10, a statement the witness had signed for the plaintiff's counsel prior to the trial. The driver Laminack also testified that the vehicle was on the left side of the center line when plaintiff was hit. (It was defendant's contention that plaintiff was walking across the highway from the driver's left to his right, that defendant was in the center of the highway when the driver first saw him, that the driver "eased" the truck over to the left to pass behind plaintiff, who, after going past the center of the highway to the right, turned and jumped back into the right front of the truck.) This ground charges no error sufficient to support the motion for a new trial.
Ground 46 of the motion is concerned with the following argument by one of the attorneys for defendant:
"Mr. Perdue: I object to the statement I was scared.
"Mr. Clark: I will withdraw that statement."
Clearly, there was no prejudicial error, and no action of the trial court was even sought.
Grounds 54 and 55 arose during closing argument for plaintiff:
"The Court: I will overrule.
The ruling was in favor of plaintiff and no objection was made to the remark of Mr. Clark. There is nothing presented for review.
The matter in Ground 55 came several minutes later.
"The Court: I will sustain.
"Mr. Perdue: We except.
In each of these instances there was no objection made to the remark complained of and no action sought of the trial court. As stated in Alabama Great Southern R. Co. v. Gambrell, 262 Ala. 290, 78 So.2d 619-621:
See Tucker v. Tucker, 248 Ala. 602, 28 So.2d 637. These remarks do not come within the exception and present no prejudicial error.
We think quotations from two of our recent cases are appropriate. The first is from the Gambrell case, supra.
The second is Birmingham Electric Co. v. Perkins, 249 Ala. 426, 31 So.2d 640, 643, where we said:
We do not conclude from the entire record that substantial prejudice has resulted to the plaintiff.
It results that the judgment of the trial court granting the motion for a new trial is reversed and one is here rendered reinstating the verdict of the jury and the judgment thereon in favor of the defendant.
Reversed and rendered.
LAWSON, SIMPSON, GOODWYN and COLEMAN, JJ., concur.