Burke v. Curtis Aeroplane Motor Co.

■ McCLELLAN, J. The apipellant sued the appellee for damages for personal injuries sustained by him. The appellant was an employé of the appellee and was, when injured, being transported by truck from Taylor Eield to the city of Montgomery. The truck was operated by the appellee’s employe. It was carrying about 26 men, employés of the appellee. It was customary for the driver to stop the truck along the streets of Montgomery to permit the men to alight at such places as they notified the driver they desired to get off. The truck had a body with sides, on which rested planks for seats. Taking the appellant’s theory of the circumstanc *355 es attending his injury, and ignoring for the occasion evidence contradicting material features of it, he notified the driver to let him off at the corner of McDonough street on Madison avenue; the truck being then “coasting” down Madison toward the Mc-Donough] street intersection. Preparatory to alighting at that intersection, appellant left his seat and supported himself by putting his feet outside the body of the truck on a brace. He was in this situation when the driver let in the “clutch,” in consequence of which the moving truck was given such a sudden jerk as to throw appellant from his footing on the outside of the body of the truck and inflicted injuries of which he complains. [1-143 It appears that the court erroneously supposed that the plaintiff had the burden of proving the incorporation of the defendant. The pleas were the general issue and of contributory negligence. Where the complaint and such pleas tender the only issues triable, there is no obligation on the plaintiff to prove the corporate character of the defendant, even though that is the allegation. Sou. Ry. Co. v. Hundley, 151 Ala. 378, 386, 387, 44 South. 195. But of this error — an erroneous conclusion that appears to have induced the court to give the general affirmative instruction for the defendant — the appellant can take nothing in consequence, if the defendant was otherwise entitled to the instruction given at its request. Bienville Water Co. v. Mobile, 125 Ala. 178, 184, 27 South. 781; Donahoo Co. v. Durick, 193 Ala. 456, 486, 69 South. 545, and cases there cited. A careful consideration of the whole evidence and all its tendencies requires the conclusion that there is no evidence of negligence on the part of the defendant’s driver that proximately contributed to plaintiff’s injury. . The plaintiff’s injury was alone legally attributable (to take his view of the evidence) to the sudden jerking of the moving truck while he was situated, as has been stated, outside the body of the truck. This was the means of his injury. The failure, if so, of the driver to stop the truck where plaintiff desired to alight, had no relation to the proximate cause of his injury, and so, notwithstanding the observed approach of the truck to the place he desired to alight induced him to assume the posture he was in when thrown from his footing outside the body of the truck. The defendant was not shown to be a common carrier. In order for^ the driver to have been negligent in the circumstances shown by this record, he must have known that plaintiff was then in such a posture that a sadden jerk of the truck would probably endanger his safety. There is no evidence or inference from evidence that the driver knew that plaintiff was in the situation stated. The plaintiff made out no case'of negligence under his complaint, and was hence not entitled to recover in any event; and defendant was due the affirmative instruction given at its request, though for an erroneous reason. The judgment is affirmed. ANDERSON, O. X, and SOMERVILLE and THOMAS, JX, concur. Footnotes [1] <§E£>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes