Alabama City, Gadsden & Attalla Railway Co. v. Bullard

DOWDELL, J. — The complaint contained two counts. The first charged willful, wanton, or intentional wrong. The second charged simple negligence. The court gave the general affirmative charge in favor of the defendant as to the first count, and no questions are presented for consideration under this count. The negligence charged in the second count was that the defendant’s servant caused the car to start with a sudden jerk Avhen the plaintiff Avas in the attempt to board the car as a passenger, thereby throwing the plaintiff to the ground and injuring him. In this connection it is averred in the count that the car Avas standing still when the plaintiff attempted to board it. The case Avas tried on the plea of the general issue alone. There was evidence on the part of the plaintiff tending to show that the car was standing still when the plaintiff attempted to board the same, as averred in the count, while on the part of the defendant the evidence tended to shoAV that the car was not standing still when the plaintiff made the effort to board it, but that it had left the stopping place and was in motion, and the plaintiff ran to catch it and made the attempt to board it when it was so in motion. Thus it will be seen that ün [621] der the pleading and evidence Avhether the car Avas standing still or in motion AArlien the plaintiff attempted to board it and received his injury Avas made a sharx> issue in the case. The court, in its oral charge to the jury, among other things, instructed them: “If you find from the evidence that, at the time it is alleged the plaintiff attempted to board one of the defendant’s cars, the car Avas then moving sloAvly, then it is a question for you to determine whether or not it was negligence on the part of the plaintiff to do so.” Again: “I have stated to you before, if it Aims only moving sloivly at the time your plaintiff was attempting to take passage on the car, it Avas for you to determine in this case whether that effort on the part of the plaintiff to so hoard the car was negligent or not.” To these parts of the oral charge the defendant duly excepted. The instructions so given and excepted to were clearly without the issues made by the pleadings. The complaint averred that the car Aims standing still Avben the plantiff attempted to board it, and the alleged negligence and wrong consisted in the moving of the car with a sudden jerk by the defendant’s servant AA’hile the plaintiff was attempting to get aboard. On this the issue was made. No act of negligence on the part of the defendant, causing plaintiff’s injury while attempting to board a moving car, is charged. Nor AAras there any plea of contributory negligence, affording an issue, that might have properly called for the instructions given. The instructions thus given were affirmative statements by the court as the laAV of the case, and Avere not cured by previous or subsequent statements by the court in its oral charge, or in written charges, given at the instance of the defendant, that the burden of proof Avas on the plaintiff to reasonably satisfy them that the car was standing still Avhen he attempted to board it. With [622] both instructions given the jury, it would be impossible to say by which the jury would be influenced and controlled. The court also erred in that portion of its oral charge excepted to by the defendant and which was as follows: “If you find from the evidence that plaintiff attempted to board the car of the defendant when it was dangerous to do so because of the rapid speed of the car, and because of this the plaintiff fell and was injured, then I charge you that, if the alleged injury was so caused by the negligence of the defendant, then your verdict should be for the plantiff.” If the “injury Avas so caused,” as the hypothetical statement of facts contained in the charge shoAvs, then it was the plaintiff’s OAvn negligence that caused the injury, and, this being so, it is difficult to understand hoAv it could be the defendant’s negligence. Certainly the negligence of the defendant mentioned in this part of the court’s oral charge could not be the negligence counted on by the plaintiff in his complaint. The definition by the court in its oral charge of negligence is here assigned and insisted upon as error. The definition given Avas as follows: “Negligence in law, which gives a. right of action, is the doing of an act or the omission of an act which results in injury to another, whereby he is damaged, but Avithout intent to do wrong on the part of the actor. This is simple negligence.” In the case of Birmingham Ry. & Electric Co. v. Bowers, 110 Ala. 328-331, 20 South. 345, 346, the court, in distinguishing betAveen willful and wanton injury and acts amounting to simple negligence, used the folloAving language: “Mere negligence, which gives a cause of action, is the doing of an act, or the omission to act, which results in damage, but Avithout intent to do wrong or cause damage.” This expression was quoted in the case [623] of Williamson Iron Co. v. McQueen, 144 Ala., on page 276, 40 South., on page 310, but without comment. In the connection in which the expression was employed in Birmingham Ry. & Electric Co. v. Bowers, 110 Ala. 328, 30 South. 345, we do not understand that it was the purpose of the court to lay down a general definition of simple negligence, but was used merely to distinguish acts of simple negligence from willful, intentional, or wanton acts. As a general definition of simple negligence it is inaccurate and too broad. It would include within its comprehensive view every single act resulting in damage, except those acts where there is an intent to do wrong or cause damage. It furnishes no standard by which to measure the degree of care required by law to be exercised. We prefer as a more accurate definition of negligence, assuming the existence of a duty, that stated in Words and Phrases, vol. 5, p. 4744; “The failure to do what an ordinarily prudent person would have done under the circumstances, or the doing of that which an ordinarily prudent person would not have done.” We are not to be understood in Avhat we have said to impinge upon the rule Avhich requires, under some circumstances, the exercise of more than ordinary care, as in the case of a common carrier towards its passenger. Under the issues made by the pleadings, Avritten charges 23 and 24, requested by the defendant, correctly stated the law and should have been given. Charge 22 was properly refused. Apart from any other consideration, it presented a question without the issues in the case under the pleadings as shown above. There was no error in overruling defendant’s motion to exclude the statement of the witness Dillard, “Looked like he fell poAverful hard and got hurt.” This was but a statement of a fact, in the judgment of the witness, [624] from what he saw. This was said in answer to a question by the plaintiff, and the defendant had no ground to complain that it was not responsive to the question. The rule is that the party asking the quescion, when the answer is not responsive may object, hut not the opposite party. We have considered those questions insisted on by the appellant, and for the errors indicated the judgment is reversed and the cause remanded. Reversed and remanded. Tyson, C. J., and Anderson and McClellan, JJ., concur.'