Birmingham Railway & Electric Co. v. Butler

DOWDELL, J. The complaint contained two counts; the first charging simple negligence, the second being intended for a count on wanton or intentional 'wrong. In this latter count in averring what constituted the wanton or intentional misconduct of the defend: ant’s agent, it is alleged that the act complained of, was done with knowledge or notice, etc., on the part of the agent. In Southern R’y Co. v. Bunt, 131 Ala. 591, 32 So. Rep. 507, we held that notice was not the equivalent of knowledge in the charge of wanton misconduct, and that an averment in the disjunctive!., of knowledge or notice, affirmed neither, and for that reason the count failed to state a cause! of action. Under the decision in that case, the defendant was entitled to the affirmative. charge requested as to the second count, and the circuit court erred in its refusal. A demurrer was interposed to the first count, which was overruled by the court, and that ruling is here assigned as error. This count contained alternative aver-ments as to negligence; one being that the defendant’s agent, “negligently caused or allowed another of said cars to collide with said car upon which plaintiff was as aforesaid;” and the other being, that the defendant’s agent negligently caused or allowed another of said cars “to appear to be in imminent danger of colliding with said car,” etc. The remainder of the count, as to the averments of the i*esult of the negligence follows both of these alternatives, and these averments are referable to either of the preceding alternative allegations, and evidently' were so intended by the pleader. The contention of the appellant is, that the count is bad for a failure of averment in the second alternative, that the appearance of conditions was such as to impress a reasonably prudent person of the actual existence of peril, and such as to cause, or- justify, such person to jump; or in jumping, from the car. Or in other words, to constitute a good cause of . action under the latter [395] alternative averment, it should appear from the allegations, first, that the appearance of imminent danger was such as to convince a reasonable person of the imminence of such danger, and second, that as the result of such appearance, the plaintiff, in order to save herself, jumped from said car, as any reasonable person might have done under such circumstances, and that thereby she was injured. It must be. observed that the averment is not, that there was imminent danger, but that there was merely an appearance of imminent danger. The averment is open to the construction that the danger appeared imminent to the -plaintiff, and proof that it did so appear, would be sufficient to authorize a verdict, in her favor on this issue, whether it would have so appeared to a reasonable person or not. This cannot be the law. We think the contention of appellant sound, and'that the trial court erred in overruling the demurrer to this count. The witness, Dr. Jernigan, was shown to be an expert., and the facts embraced in the hypothetical case stated to him were supported by the evidence, but the question put to him went further than was necessary in giving a predicate, calling for his opinion as to the extent. and probable effect of the injury to the plaintiff. The question included statements of matters altogether unnecessary to the forming, of an opinion. This was improper. An hypothetical case calling for an expert opinion, should contain only such facts as are shown in evidence, and necessary to the forming of an opinion. Moreover, this witness had made a careful examination of the plaintiff and the injury inflicted on her, and was as well prepared from his personal knowledge of the facts to give his expert opinion, without the hypothetical case stated in the question, as with it. There was evidence tending to show that the plaintiff was pulled off of the. car by the gentleman accompanying her, and also evidence tending to show that another passenger, after she had fallen or been pulled off, jumped or fell upon her. In either event, if the imminent danger and peril from collision of the cars existed in fact, or if the appearance of such imminent danger [396] was sneli as to reasonably impress an or<li narily prudent person of its presence, and the acts above stated followed in efforts of escape or safety, the question of defendants liability in law would be the same. In either case, the negligent act of the defendant would be. the proximate cause. There are other questions raised by the assignments, some of which are insisted upon, in argument, and some are not. Of those insisted on, they are sufficiently, we think, covered by what we have said for the purposes of another trial. For the errors pointed out, the judgment of the circuit court is reversed and the cause remanded.