Birmingham Railway, Light & Power Co. v. Lindsey

SHARPE, J. Plaintiff was riding as a passenger on a street car of defendant and, alighting therefrom, fell or was thrown to the street, and brought this suit, on account of personal injuries alleged to have been received on that occasion. In the first count of the complaint the injuries are ascribed to negligence of the defendant “in or about the management or operation of said car.” In the second count the averment of wrong is that “while plaintiff was engaged in or about alighting from said car, defendant’s servant or agent in charge or control of said car having knowledge and notice that plaintiff was so engaged and that to cause him to fall to the ground would be highly dangerous to plaintiff, nevertheless, with said knowledge' or notice, defendant through said servant or agent wantonly or intentionally caused plaintiff to fall or be thrown to the ground as aforesaid and as a proximate consequence thereof plaintiff suffered the injuries set out,” etc. This last count was free from objections taken by demurrer. Therein the averment of wantonness or intention is made as characterizing the act causing the fall — an act so naturally and apparently dangerous to [316] plantiff as to charge the perpetrator with knowledge' of the danger; hence if the count be construed as not expressly averring such knowledge, it is not by such construction, rendered bad as a charge of wanton or intentional misconduct. In the particular just mentioned the count is materially different from those which because of alternative averments of knowledge and notice, were condemned in Louisville & Nashville R. Co. v. Mitchell, 134 Ala. 261; Southern Ry. Co. v. Bunt, 131 Ala. 591. Charge 2. by assuming that plaintiff alighted from the car might have been taken by the jury as an intimation that plaintiff was not thrown from the car. In civil cases the burden of proof is sustained by evidence sufficient to reasonably satisfy the jury. Charge 3 would have imposed upon the plaintiff too high a degree of proof.—Torrey v. Burney, 113 Ala. 496. “The decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of evidence or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness the preponderance of the evidence against the verdict is so decided as to convince the court that it is wrong and unjust.”—Cobb v. Malone, 92 Ala. 630. Such is the rule applicable to the refusal of defendant’s motion for a new trial, and this court, being not convinced that the verdict was wrong and.unjust, will not reverse for that refusal. Affirmed.