Cutcliff v. B'ham Ry. L. & P. Co.

ANDERSON, J. — There was no error in sustaining tbe objection to tbe question asked plaintiff when examined, as it was not in rebuttal to anything brought out by tbe defendant. It is needless for us to determine whether so much of tbe argument of counsel excepted to by tbe plaintiff was improper or not, since the plaintiff is in no position to complain if it was. “To bring questions growing out of improper argument of counsel under review, the trial court must first be appealed, to, to remedy tbe wrong by eradicating any effect tbe argument may have bad on tbe minds of the jury, through appropriate instructions given them at the time and otherwise. If the court fails to act, upon such appeal being made to it, or acts erroneously, an exception reserved to tbe act or omission of the court, and that alone will bring the question before us. But we cannot revise judgments here on account of sayings and doings of counsel. We review only the action of nisi prius courts.” — Stone v. State, 105 Ala. 60, 72, 17 South. 114; King v. State, 100 Ala. 85, 14 South, 878. In the case at bar the court did what the plaintiff asked, and the defendant, and not the plaintiff, reserved an exception to the action of the cofirt. [111] The record recites tbat charge 1, requested by defendant, was at first refused, and so marked, and tbat tbe plaintiff’s counsel, after examining it, consented for it to be given. We do not tbink tbe plaintiff is in a position to complain of tbe court’s action in giving this charge. When counsel, actuated, no doubt, by a confidence in tbe finding of tbe jury in favor of their client, consent to rulings of tbe court on doubtful questions, to deprive the other side of what might be reversible error, they cannot be permitted to afterwards charge error because tbe jury disappointed them by their verdict. Charge 4, requested by the plaintiff, doubtless, was intended as a qualification or avoidance of charge 1, requested by defendant, but which would be.meaningless and bad if the jury did not have before them said charge 1, requested by defendant. It appears from the record that, when the judge acted on and refused this charge of plaintiff, he had previously refused charge 2 of defendant. So, with charge 1 out when acting on this charge, it was properly refused. After the court had refused both charges, the plaintiff consented to the giving of defendant’s charge 1, and, as conditions were changed by her acts, we think that plaintiff should have requested another charge to meet the change in the ruling of the court brought about by her action in consenting, or should have, at least, brought her charge to the attention of the court after the action had been reversed as to charge 1, and we cannot reverse the trial court for not having given this charge. Charge 3 simply required that the finding of the jury must be unanimous, hypothesizing the issue in the case. The only count left in the complaint, No. 7, charges negligence only by a “sudden and unusual jerk.” The trial court erred in giving charge 2, requested by the defendant. We cannot affirm as matter of law that a failure of the plaintiff to take her seat before the car started rendered her guilty of negligence, notwithstanding she had time to do so and that there were many vacant seats. The defendants evidence showed that the proper way to start the car was slowly and smoothly, and without a sudden jerk; and, if a passenger had no ground to anticipate that it would be started with a [112] jerk, we cannot say that she wonlcl be guilty of negligence by a failure to take a seat before the car started, and think the question of contributory negligence was one for the jury. — Armstrong’s Case, 123 Ala. 233, 26 South. 349; Birmingham Ry. & Elec. Co. v. James, 121 Ala. 120, 25 South. 847. It is stated on page 682 of 5 Am. & Eng. Ency. Law: “But it has been held that if a railway train stops a reasonable time at the depot to allow passengers to enter the cars and a reasonable time thereafter for them to be seated, a passenger who fails to sit down, and is thrown down and injured by the starting of the train after the usual signal is sounded, is guilty' of contributory negligence. A different rule has been declared where the passenger enters a car and finds no seats vacant, and is injured while looking about for a seat.” This quotation is not supported by the case cited.—L. & N. R. R. Co. v. Copeland, 60 Tex. 325. There the court did not hold that it was negligence per se on the part of the plaintiff for failing to. take her seat before the train started but that the trial court erred in charging the jury that the defendant was guilty of negligence, if the conductor failed to see that the passengers .were seated before starting. The judgment of the city court is reversed, and the cause is remanded. Tyson, Dowdell, and Denson, JJ., concur.