LIVINGSTON, Chief Justice.
This is an appeal from a judgment for the defendant in an action brought under the wrongful death statute, Sec. 123, Title 7, Code of 1940, by James A. Powell, as Administrator, v. Atlantic Coast Line Railroad Company et al., for the death of Ola Bell Powell, the wife of James A. Powell.
The case was tried on a simple negligence count, which, of course included subsequent negligence. The defendant pleaded the general issue in short by consent, etc.
The evidence disclosed that shortly after midnight, February 5, 1958, the plaintiff's intestate and three other ladies were in an automobile, being driven by a Mrs. Parsons, that collided with an Atlantic Coast Line Railroad train, resulting in the death of Mrs. Powell. The collision occurred at a public grade crossing, on Avenue V, in the western part of the City of Birmingham. The automobile was proceeding south and the train was heading east.
There was conflict in testimony as to whether the train was exceeding the required speed limit, and as to whether the train ran into the automobile or the automobile hit the train.
The appellant's assignment of error No. 6 is based on the trial court's giving written Charge N, at the request of defendants, which reads as follows:
Appellant argues that this charge misstates the law and ignores the fact that the train was in the city limits of Birmingham and was under a duty to obey the city ordinance to reduce its speed to 30 miles per hour. Appellant's criticism of the charge overlooks the fact that the charge is expressly predicated upon the condition of affairs existing at the time the train was in the city limits and at the time the automobile in question came into view of the members of the train crew. The charge deals entirely with the conduct required by law of the driver of the automobile and members of the train crew, beginning at the time when the automobile was first seen by any member of the train crew, and the requirements of each thereafter.
Predicated on such facts, the charge states a correct principle of law. Southern Railway Co. v. Hughes, 267 Ala. 418, 103 So.2d 324; Hurt v. Southern Ry. Co., 205 Ala. 179, 87 So. 533; Fayet v. St. Louis & S. F. R. Co., 203 Ala. 3, 81 So. 671. The charge in no way expresses or implies that the train crew was under no duty to reduce the train's speed to within the 30 mile per hour speed limit. It deals with the duty of the train crew, when the train is within the city limits and is approaching a crossing, and where there is an automobile in view also approaching the crossing. The effect of the excessive speed of the train, if it were, in fact, exceeding the speed limit, was not ignored by the court, and it was covered in defendant's given Charge Z and in the court's oral charge. At most, the charge could only be criticized as being misleading, and this misleading tendency, if such there was, could have been cured by an explanatory charge. Mobile City Lines v. Orr, 253 Ala. 528, 45 So.2d 766; Brown v. Standard Casket Mfg. Co., 234 Ala. 512, 175 So. 358; Alabama Power Co. v. McIntosh, 219 Ala. 546, 122 So. 677.
Assignment of error No. 2 is based on the giving of defendant's requested Charge No. 12, which reads as follows:
The argument is that Charge 12 misplaces the burden of proof as set out in
There is no charge in the last-cited case similar to Charge 12 now under consideration. The charge in the Western Ry. case, supra, expressly stated that the burden of proof was on the plaintiff and not on the railroad. Charge 12, here in question, deals only with the requirement that the verdict of the jury must be unanimous. Charge 12 correctly states the law and was properly given. Bankers' Mortgage Bond Co. v. Rosenthal, 226 Ala. 135, 145 So. 456; Louisville & Nashville R. Co. v. Steverson, 220 Ala. 158, 124 So. 205.
Assignment of error No. 5 is based on the giving of Charge M at the written request of the appellees. The charge is as follows:
Appellant argues that the charge is bad for not stating further that the assumption by the train crew that the automobile would not stop ends when it becomes apparent to the train crew that the driver is not going to stop. This omission, however, was covered in the next Charge N, treated above. Charge M was possibly misleading; but we will not reverse the judgment for this reason, as no doubt its misleading tendency could have been cured by an explanatory charge which was not requested. Moore v. Nashville C. & St. L. Ry., 137 Ala. 495, 34 So. 617; Klein v. Harris, 268 Ala. 540, 108 So.2d 425.
Assignment of error 13 is predicated on the trial court's sustaining the objection to the following question put to the witness Bartlett [who was the conductor of the train]:
Appellant argues that Bartlett was an expert on such matters as inquired about and that he should have been allowed to answer the question. The information sought by this question had been substantially brought out in other testimony. Moreover, this court has ruled that expert testimony or the opinion of expert witnesses is addressed to the sound discretion of the trial court, and whose decisions on such matters will not be disturbed on appeal except for palpable abuse. Kirby v. Brooks, 215 Ala. 507, 111 So. 235; Johnson v. Battles, 255 Ala. 624, 52 So.2d 702; Southern Metal Treating Co. v. Goodner, 217 Ala. 510, 125 So.2d 268.
We are unwilling to reverse this case by saying that the trial court abused its discretion.
The appellant also claims that the court erred in sustaining the objection of
Immediately following the sustaining of this objection, the witness Derico testified that he was keeping a lookout and that he gave the alarm upon realizing the danger to the approaching automobile. There was no reversible error in excluding the testimony. Supreme Court Rule 45; Birmingham Southern R. Co. v. Harrison, 203 Ala. 284, 82 So. 534.
Appellant also contends that the court erred in overruling plaintiff's objection to the following question put to the witness Holland:
"MR. HARE: We object to that as hearsay.
"THE COURT: Overrule.
"MR. HARE: We except.
"A. Yes, sir.
"Q. Who did tell you they saw the accident?
"MR. HARE: We object to hearsay from other people.
"THE COURT: Overrule.
"MR. HARE: We except.
"A. Mr. Arthur Lewis Long."
Appellant argues that these questions were asked to inject doubt as to whether plaintiff's witnesses were witnesses to the collision as they claimed to be.
The substance of this testimony sought to be elicited by these questions had already been brought out from other witnesses. There was no prejudice to the plaintiff. Rule 45, Supreme Court.
Appellant also insists that the court erred in not admitting plaintiff's Exhibit 20, which was a report of the Department of Toxicology of Alabama of the analysis of the specimen of blood from the driver, Mrs. Christine Parsons, which revealed a negative test for alcohol. There was no attempt whatever to show that this was a true and correct report, nor to authenticate said report or finding. Exhibit 20, not being a self-proving document nor authenticated, it was properly excluded. Creel v. Audubon Ins. Co., La.App., 128 So.2d 284; Snead v. Stephens, 242 Ala. 76, 5 So.2d 740; Edmunds v. State, 203 Ala. 349, 83 So. 93, and cases therein cited; Kay-Noojin Development Co. v. Kinzer, 259 Ala. 49, 65 So.2d 510.
Assignments of error 21 and 22 are predicated upon an alleged exception to portions of the court's oral charge. The record discloses the following:
"MR. HARE: Yes, sir.
"THE COURT: I understand."
The only portions of the oral charge questioned in brief are those contained in assignments of error 21 and 22, which are as follows:
As to assignment of error 21, there was no error in giving that part of the oral charge set out. It correctly states the law, and there is a duty upon a passenger to exercise reasonable care for his or her own safety. Iverson v. Phillips, 268 Ala. 430, 108 So.2d 168; Walker v. Bowling, 261 Ala. 46, 72 So.2d 841; Johnson v. Battles, 255 Ala. 624, 52 So.2d 702.
Neither do we think that portion of the oral charge set out in assignment of error 22 is grounds for reversal. Appellant has taken a part of the oral charge and isolated it and put much emphasis on the word "anyone," and argues that the charge states that it is a continuing duty on a passenger in an automobile in crossing a railroad to keep a lookout. True, there is no such duty on a passenger. Iverson v. Phillips, supra. But the charge in question does not say this, or have such connotation. The charge stated that there was a city ordinance requiring the driver upon entering a railroad crossing to stop within 20 feet of the tracks, and the court stated:
The charge, read as a whole, conveys to the jury that it is a driver or pedestrian who is under duty to continuously keep a lookout, and not the duty of a passenger. Taken in context with the whole of the charge, "anyone" appears to mean "anyone driving or walking" is under a duty to keep a lookout upon entering a railroad crossing. There is nothing in the charge which implies that the negligence of the driver is imputable to the passenger. There was no error in giving this charge. Moreover, we do not think the record discloses an adequate exception reserved. Sullivan v. Miller, 224 Ala. 395, 140 So. 606; J. R. Watkins Co. v. Goggans, 242 Ala. 222, 5 So.2d 472.
Appellant argues that the court erred in refusing the following written requested charge to the plaintiff:
The subject matter of this requested charge was covered by the plaintiff's written Charge No. 1 and in the court's oral charge to the jury. There was no error in refusing this charge.
Appellant contends that the court erred in not granting a new trial on the ground that the verdict was contrary to the evidence.
We have examined the evidence in this case, and although conflicting, there was sufficient evidence to support the verdict and judgment. It needs no citation of authority to support the rule that this court will not reverse the judgment denying a new trial unless it is clearly convinced that the weight of the evidence is clearly and decidedly against the verdict and that the verdict is manifestly wrong and unjust.
We have repeatedly held that where a trial court refuses to grant a new trial on the ground that the verdict is contrary to the weight of the evidence, the presumption in favor of the correctness of the verdict is strengthened. Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785; 2 A.Ala.Dig., Appeal & Error.
SIMPSON, MERRILL and HARWOOD, JJ., concur.