Selma Street & Surburban Ry. Co. v. Campbell

ANDERSON, J. While count 4 of the complaint charges that the motorman in charge of said car willfully, wantonly, and negligently started the car back, it does not aver a consciousness on the part of the motorman of the plaintiff’s peril, or that it was so started at a point where the starting of which was known to the motorman as being dangerous. It does not aver that the motorman knew that the plaintiff was preparing to alight or in the act of alighting when he started the car, or that people customarily transferred at that particular point. It does aver that the conductor and other employes of the defendant knew that it was necessary for him to get off at the corner of Broad and Selma streets, but does not aver that they knew he had to get off at this párticluar point at said crossing, or that this was the place of making transfers, and that it was so known to the servant starting the car. It is a matter of common knowledge that there are four corners at the usual street crossing, and there is no averment that the servants knew that plaintiff had to transfer at the one where he made the attempt, or that it was the particular corner where passengers did transfer. The trial court did not err in overruling the demurrers proceeding upon the theory that this was a count for wanton or willful misconduct. Moreover, it was treated as a simple negligence count throughout the trial, by the allowance of pleas of contributory negligence thereto and in giving special charges that contributory negligence would defeat a recovery thereunder. — Montgomery St. R. R. v. Rice, [445] 142 Ala. 674; 38 South. 857; L. & N. R. R. v. Orr, 121 Ala. 489, 20 South. 35; M. & C. R. R. v. Martin, 117 Ala. 367, 23 South. 231. Counts 4, 5, 6, and 7 aver that the car was negligently started backwards, and sufficiently charged simple negligence. — Armstrong v. Montgomery R. R., 123 Ala. 244, 26 South. 349; L. & N. R. R. Co. v. Marbury, 125 Ala. 237, 28 South. 438, 50 L. R. A. 620; Russell v. Huntsville R. R., 137 Ala. 628, 34 South. 855. We do not understand the count to set out or attempt to set out the constituents of negligence. It does not ascribe the negligence to the preceding detailed circumstances above, or charge that it consisted in the acts or omissions as aforesaid. We are, of course, aware of the rule that, notwithstanding the quo modo, need not be averred, yet when it is, and the pleader relies upon the facts so set out as charging negligence, that the count is bad if the facts so stated fail to show negligence. But we do not think the complaint in the case at bar predicates the charge of negligence upon the facts detailed. It avers the surroundings and conditions, and that the motorman negligently started the car, etc., thereby throwing the plaintiff down. It does not aver that the conditions detailed constituted negligence, nor attempt to set out the quo modo by reference to the detailed facts or otherwise. The trial court did not commit reversible error in sustaining the demurrer to plea 6. Whether good or bad, which we need not decide, it was cured by the general issue as to counts 4, 5, 6, and 7. Each of said counts charge that the plaintiff was thrown from the car, while the plea avers that he stepped off backwards. If he stepped off, whether forward or backwards, then he was not thrown off, as charged in said counts of the complaint. It is true counts 1, 2, and 3 merely charge [446] a. negligent failure to safely transport the plaintiff as a passenger; and conceding, without deciding, that said plea 6 was a good plea of contributory negligence to these counts, the defendant got the benefit of same under plea 7, to which no demurrer was sustained. The question asked the plaintiff as a witness, “Did you step off the car, or were you thrown off?” did not necessarily call for a conclusion of the witness. The fact that he did or did not step off was a fact to which he could testify. Conceding, therefore, without deciding, that a part of the question called for a conclusion, in order to put the trial court in error, the objection should have separated the good from the bad, and applied to only so much of the interrogation as solicited a conclusion. Charge 1, given at the request of the plaintiff, was an invasion of the province of the jury and should have been refused. It assumes and in effect tells the jury that indications were given that the car was being slowed for the purpose of permitting passengers to alight. It may be from the plaintiff’s evidence that the jury might be authorized to infer an invitation to alight and that this inference could be drawn by reason of indications, if any there were; but the vice of the charge is that it assumes and instructs that indications were given from which an invitation to alight might be implied, when it was for the jury to determine the natnre and character of the indications, if any there were. A charge which assumes the existence of a fact, or which instructs that it does exist when it does not, or when there is a conflict in the evidence as to whether or not it does exist, is clearly an invasion of the province of the jury. — 2 Mayfield, p. 571; Thompson v. State, 30 Ala. 28; A. G. S. R. R. v. Roebuck, 76 Ala. 277; Hair v. Little, 28 Ala. 236. [447] The trial court did not err in refusing the affirmative charges as to counts 4 and 7. We have already held that these counts did not charge wanton or willful misconduct, and there avus evidence from which the jury could infer simple negligence. The trial court did not err in refusing charge A, requested hy the defendant. The undisputed evidence shoAvs that the car had reached the corner of Broad and Selma streets before it stopped, or before the plaintiff attempted to alight. It may not have passed- even the first corner, but the front of it reached the corners nearest to it, and the complaint avers (counts 4, 5, 6, and 7) that Avhen the car reached the corner of Broad and S'elma streets it was stopped, etc. It does not designate any particular corner. For the error above designated, the judgment of the city court is reversed, and the cause is remanded. Reversed and remanded. Tyson, O. J., and Doavdell and McClellan, JJ., concur.