Atlanta & Birmingham Air Line Railway v. Wheeler

ANDERSON, J. The question asked the plaintiff, when a witness, in reference to her position on the car step, when about to step on the stool and when she discovered the condition of said stool, did not call for a conclusion and sought relevant evidence, as the reply would aid the jury in determining whether or not she was guilty of negligence in stepping upon the stool after discovering its condition; that is, whether or not she made the discovery in time to check her descent. It may be that a part of her answer went beyond a legitimate response to the question, and that the witness volunteered a conclusion as a part óf her answer; but appellant’s motion to exclude went to the entire answer, and did not seek to eliminate so much thereof as was a conclusion, and the trial court will not be put in error for overruling a motion to exclude evidence in its entirety, when some of it is good. It is insisted that this evidence was not admissible under the pleading, that it was intended for the purpose of showing the plaintiff’s inability to stop after discovering the condition of the stool, and that it could not have been shown without a replication to the pleas of contributory negligence. Counsel evidently loses sight of the fact that the pleas aver that the plaintiff “negligently” stepped on the footstool after discovering its condition. If she did not discover that the stool was improperly set on the ground until it was too late.to reinstate herself on the car steps or to check the downward movement of her body, she did not negligently step thereupon, and this evidence was relevant to negative the defendant’s pleas of contributory negligence. The trial court did not err in refusing charge 5, the general charge, requested by the defendant. There was evidence in support of the complaint, and wc cannot [537] agree with counsel for appellant in the insistence that the pleas of contributory negligence, or any one of them, were proved beyond dispute. It is true that one of the defendant’s witnesses testified that plaintiff stepped on the edge of the stool, and this fact was not contradicted. Still the plea avers that she “negligently” did so, and that her doing so was the proximate cause of her injury. It was for the jury to determine whether or not she neg: ligently stepped on the stool. If she did not discover its condition until too late to check her downward movement, then she did not negligently step on the stool. Moreover, it was a question for the jury to determine whether or not the plaintiff’s stepping on the edge of the stool was the proximate cause of the injury, or whether it was caused- by the uneven position it occupied on the ground. If the ground was level and. unbroken, and the stool rested firmly upon all of its edges, it may be that it would not have turned, even if plaintiff stepped on or near the edge of same. The trial court did not err in refusing charge 1, requested by the defendant. If not otherwise bad, it was faulty in instructing the jury that they could not consider the unevenness of the ground where the train stopped in fixing the defendant’s liability under the second count. It is true the negligence charged in the second count was in fixing the stool, yet if the train stopped at a point where the ground was broken, and the stool was placed on broken and uneven ground, the mere act of putting it on uneven ground may have constituted a negligent fixing or placing of the stool. What we say as to this charge relates also to refused charge 9. Charges 13, 23, and 29, requested by the defendant, were properly refused. If not otherwise bad, they pretermit the plaintiff’s discovery or knowledge of the con [538] dition of the way the stool was adjusted in time to stop. The plea avers that she negligently stepped on the stool after discovering its condition, and there was evidence from Avhich the jury could infer that she did not negligently do so, and that she did not discover its condition in time to keep from stepping on it. Charge 15, requested by the defendant Avas properly refused. It called for a finding for the defendant on the entire complaint, upon a failure of proof only as to counts 2 and 4, thus pretermitting a consideration of the other counts, and notwithstanding there Avas evidenee in support of counts 6 and 7. Counsel justifies this charge, in argument, upon the theory that the statute of limitations Avas good as to these last two counts; that they Avere introduced by Avay of amendment more than a year after the injury, and were of such character as to not come within the lis pendens, and did not, therefore, relate back to the original complaint. The gravamen of the action, as disclosed by each count of the complaint Avas the defendant’s negligent failure to provide the plaintiff AvitJi a safe place to alight from the train. It may have been that the failure Avas due to an . improper fixing of the stool, the unevenness of the ground upon which it was fixed, or the unevenness of the ground where the train was stopped, and at the point at Avhich the stool was set and she was invited to alight. The averment of one or all of these causes was but the statement of facts setting out wherein the defendant failed to provide a safe place for her to alight from its train. If the stool upon which she Avas invited to step was not properly adjusted, because of the way it was fixed on the ground, and for that reason careened or turned over, the defendant failed to furnish her a safe place to alight. If the ground was uneven, and in consequence thereof [539] the stool was not stationary or secure, she was not provided with a safe place at which to alight. If the train stopped where the ground was broken and uneven, and defendant’s servant placed the stool at such a point, and it careened or turned because of the condition of the ground where the train stopped and where it was placed, then the defendant failed to provide her with a safe place to alight. The essence of the charge in each count was the defendant’s failure to provide plaintiff with a safe place to alight from the train and the amendments were not such as to prevent a relation hack to the original, and were not subject to the plea of the statute of limitations. — L. & N. R. R. Co. v. Woods, 105 Ala. 561, 17 South. 41; N. C. & St. L. Ry. v. Hill, 146 Ala. 240, 40 South. 612;City of Sheffield v. Harris, 112 Ala. 614, 20 South. 955; Heald’s Case (post.), 45 South. 686. The trial court did not err in refusing charge 19, requested by the defendant. It pretermits the fact that the negligence of the plaintiff proximately contributed to her injury. It is true the charge refers to the pleas; but, assuming that the negligence meant by the charge was the same as what is set out in the pleas, yet the pleas aver that the negligence so set up was the proximate cause of the injury, but which said averment is as to the result or consequences of said negligence, and the word “proximate” cannot be supplied by referring the charge to the pleas, which sets out the acts or omissions constituting contributory negligence, but which cannot excuse the omission of the proximate cause from the charge. The plaintiff may have been guilty of negligence in some slight degree and in some way as set out in the pleas, and which may have contributed to her injury; yet, unless the negligence proximately contributed to her injury, the pleas were not proven, and the defendant [540] was not entitled to a verdict on the pleas of contributory negligence. The evidence was sufficient to warrant a verdict for the plaintiff, and in fact the weight of the evidence was favorable to the plaintiff, and her evidence was not contradicted as to the extent of her injury and suffering, and we are not prepared to say the damages were excessive. The trial court did not err in refusing the motion for a new trial. The judgment of the city court is affirmed. Tíson, C. J., and Haralson and Denson, JJ., concur.