Birmingham Railway Light & Power Co. v. Girod

MAYFIELD, J. This is an action by plaintiff, as a husband, for lost services due to a personal injury received by his wife, while a passenger on defendant’s electric car, in being thrown from it, while alighting at her destination, by a sudden starting or increase in speed of the car. The complaint originally consisted of three counts. The third was withdrawn by amendment. Each count charged simple negligence only. Defendant filed six special pleas of contributory negligence. Demurrer was sustained to the second plea, charging plaintiff’s wife with negligence in riding on the platform, in violation of defendant’s rule published in the car. The rulings on demurrers to the complainr, are not insisted on. The remaining special pleas, demurrers to which were overruled, charged contributory negligence in riding on the platform Avithout properly holding on, and in alighting from the car, in the dark, and encumbered Avith bundles, while it was in motion: — 16 — Plaintiff’s evidence tended to .show that his wife was a passenger from Birmingham to Ensley on Defendant’s electric car, and her destination was Nineteenth street and Avenue E. Ensley, which was the terminus of the car line; that when the car approached the terminus the conductor called out “Ensley,” or “All out for Ensley,” after the ' car stopped, and she arose from her seat and went to the rear of the car, with other passengers, to alight, and was the last one to alight; that while on the platform, in the act of alighting, with a gallon can of milk in her hand, and not holding on, the car started with a sudden jerk and threw her to the ground; that she heard the conductor ring the bell to start, he being on the inside; that she was first taken to the hotel a.t Ensley, near the terminus, and thence in an ambulance to her home; that on the Avay to her home in the ambulance she lost her voice, and had since been unable to speak above a Avhisper; that her vision Avas also injuriously affected after the accident; that she remained confined to her bed for' months; that her hip Avas fractured, and she could onJy walk on crutches up to the time of the trial, and that she had broken ribs; that the plaintiff had employed Dr. W. H. Wynne, Dr. B. G. Copeland, Dr. Heacock, and Dr. Manning Broavu, of HopkinsAÚlle, Ky., where he had sent his Avife for treatment, to treat her, and had also paid doctor’s bills to each in amounts testified by him, and had paid nurse’s wages and his wife’s railroad fare from Birmingham to Hopkinsville, Ky., and return, when she Avent there for treatment (record, pages 14 and 15) ; that Dr. Manning Brown had never treated her before the accident; that plaintiff had to hire a cook after the accident, to whom he paid $3 a week and board; that he paid the nurse wages, and also furnished her with shoes, clothing, and medicine as part of her wages, and with board. There was no evi — 17 — dence introduced as to the reasonableness of the .amount paid the doctors, nurse and cook. The evidence is set out in full, except the doctors’, and on page 30 of the record is a recital in the bill of exceptions that the testimony of the doctors not set out in extenso related to the plaintiff’s wife’s condition and the extent of her injuries, “but to no other facts bearing on any ■of the issues involved, and whose evidence is not for that reason set out in extenso in the bill of exceptions.” The evidence of the physicians was of great length, and for that reason, and the additional reason that the extent of plaintiff’s wife’s injuries is only involved in the exception based on the motion for a new trial because of excessive damages, Avhicfi is not insisted on, was set out in full. Defendant’s evidence tended to show that the plaintiff’s wife attempted to alight before the car reached its usual stopping place for discharging passengers, and while it was moving; that it was dark, and that she had bundles in one hand and a can in the other; that «he stepped off of her own accord and fell, the car not stopping till it reached the usual stopping place for ■discharging passengers; that the conductor called “All out for Ensley” while the car was still in motion, and that it did not come to a stop after he .announced the name of the station and until after the plaintiff’s wife had fallen; that the car plaintiff’s Avife was riding on was following another car, and would slow up to permit it to get far enough ahead, and then start again forward, but never did come to a stop till it reached the terminus, where passengers were accustomed to get ■off. The evidence of the defendant also tended to contradict the alleged serious character of the plaintiff’s wife’s injuries. The action being that of the husband, the measure of damages was for loss of his wife’s services and society. — 18 — Plea 2 was insufficient in that it failed to show that, the passenger had notice, actual or constructive, of the rule set up as a defense, and it does not sufficiently allege a causal connection between the violation of the rule and the injury alleged in the complaint. It may be there was an attempt 'to conform the pleas to these requirements. They were insufficient, and the demurrer was therefore properly sustained. The allegations of the complaint were sufficient, as to the character and extent of the injuries received by the passenger, to allow evidence as to the loss of voice in consequence of the injuries, though the loss of voice is not specifically alleged. It is not required to aver in specific terms each injury or pain suffered. The injury, its character, nature, and extent, may be sufficiently averred, without detailing, enumerating, or specifying each separately. The loss of voice might well be included in some of the injuries alleged. The loss of the wife’s voice was certainly an element of the damages suffered by the husband in consequence thereof. If the complaint was too general in its averments as to the nature, character, or extent of the injuries suffered and complained of, the defendant should have had this corrected by a demurrer to the complaint.— Henry’s Case, 139 Ala. 166, 34 South. 389; 16 Ency. Pl. & Pr. 377-383, and notes: See, also, Curran v. Strange, 98 Wis. 598, 74 N. W. 377. If there was ex’ror in overruling defendant’s objection to the question, “What was the fare to Hopkins-ville, Ky.?” it is not made to appear. We can see no objection to the question itself. The apparent answpr to it might or might not be competent or relevant evidence, depending upon other evidence or other facts necessary to make it relevant or. irrelevant. The objection to this question was not followed up by .objec — 19 — tions to, or motions to exclude, the evidence. So far as appears, the defendant may have waived the error, if error it could be, or consented to the answer. The only insistence made is that it was not shown to be necessary. — Sanders v. Knox, 57 Ala. 81. Charges 1, 2, 18, and 20, each, as appellant admits, asserted, in varying language, the same proposition, that it was as matter of law contributory negligence on the part of the passenger in this case to step from the car voluntarily, and consciously, encumbered with bundles, in the dark, and while it was moving, and had not reached the regular stopping place for the discharge of passengers. Each of these charges were refused to the defendant, and properly so. It may, or may not, be negligence for a passenger to step from a moving car or train in the dark, encumbered with bundles. This depends upon the kind of car or train, its construction, the speed of the car at the time, the size and character of the bundles, the condition of the passenger, age, health, etc., the place, time, and occasion of alighting, etc. While some of these charges hypothesized some of the conditions which would make the passenger liable, no one of them hypothesized all. For example, suppose an ordinary electric car is slowing up to. stop and is barely moving, and a passenger step off with some small bundles in his hand; can it be said as matter of law that this is contributory negligence?. .We think not. If so, nearly all Avho ride in such - cars are uniformly guilty of contributory negligence. ' There may be some who do not. If so, they are the exception and not the rule. If the passenger be encumbered Avith heavy bundles, the car moving rapidly, he would be guilty of contributory negligence. It is the apparent danger of the act that renders it negligence. In the one case, the danger is apparent; in the other it is not, if — 20 — it exists at all. True, there are some cases holding that it is as matter of law contributory negligence to step off a car in motion, and especially so when encumbered with bundles; but we think the great num-. her and weight of authority hold that such is not negligence as matter of law, but may be as a matter of fact, depending, of course, upon the circumstances of each particular case. There are no doubt many cases of the kind where the act can be and has been declared negligent as matter of law, but in most cases of the kind it is properly a question for the jury.- — Watkin’s Case, 120 Ala. 147, 24 South. 392, 43 L. R. A. 297. Such was the Case of Rickerts, 85 Ala. 604, 5 South. 353, and Hunter’s Case, 150 Ala. 594, 43 South. 802, 9 L. R. A. (N. S.) 848. We do not think the facts hypothesized brought the charges within the rule announced in any one of these two cases, declaring such acts or facts as matter of law are negligent. — Elliott on Railroads, vol. 4, §§ 1628, 1841; Hutchinson on Carriers, vol. 3, § 1177 et seq; Hunter’s Case, 150 Ala. 594, 43 South. 802, 9 L. R. A. (N. S.) 848. And if it could be said to have been error to refuse any one of these charges it was without injury. It affirmatively appears that the trial court gave one or more charges requested by defendant which unquestionably instructed the jury correctly upon the identical and only proposition of law involved in each of these charges refused. It is conceded by appellant that, if the plaintiff was entitled to recover, he was entitled to recover the -amounts which were reasonably expended by him in the way of nursing and treatment of his wife, rendered necessary on account of her injuries; but it is insisted that the evidence to establish the various items, the salary of the nurse, the cost of her board, lodging, and — 21 — clothing, while nursing the plaintiff’s wife, did not show that the amounts expended were reasonable, or that the items were reasonably worth the amounts paid, and, therefore, the court at the request of the defendant should have charged the jury that no recovery could be had as to the various items. It was not error to refuse all such charges requested. True, the measure of the recovery for such items is the reasonable value of the cost thereof, and not what was actually paid, or contracted to be paid. It does not appear that the amounts paid, or any one of them, was unreasonable; and can the court presume that it was, in the absence of the proof? If there he any presumption (and we do not say there is), would it not be that the amounts paid were reasonable, rather than that they were unreasonable? The objections as to this matter should have been interposed to .the evidence when offered. The competency of it, and relevancy of it, was waived by a failure to object to its introduction. For aught we can know, the defendant did not object, because it was favorable to it. The evidence cannot be wholly eliminated by charges. It was certainly proper for the jury to consider it, in connection with all the other evidence, in determining what was the reasonable cost of such items, which were legitimate and proper charges. Counsel are in error in supposing there was no evidence to show that the amounts were reasonable. — i Sutherland on Damages, § 1250, and notes. The same is true as to the charges asserting that plaintiff could not recover the amounts paid the doctors for treating and attending his wife on account of the injuries inflicted by defendant, because not shown to be reasonable. Neither the trial court nor this court can know that these amounts were unreasonable. They are as liable to be less than the reasonable value as to — 22 — be more. The record shows that , the evidence of the physicians, who were examined as witnesses, was not set out in the bill of exceptions. For anght we can know, this evidence may have shown that all the amounts paid were reasonable. We cannot indulge presumptions, in the absence of proof, against the action of the trial court as to' these matters. It appears that no objection whatever Avas made to the evidence as to amounts paid for nursing and treating the patient. A party will not be allowed to speculate on the evidence in this manner. Parties may try their cases on immaterial evidence if they desire; but they will not be allowed to introduce evidence, to admit it, or to consent to it, without protest or objection, and then have the court charge the jury that they cannot find a verdict on it, becamse not competent or relevant — especially •when the charge itself does not point out or call the court’s attention to the evidence complained of, but merely requests a verdict as if no evidence had been admitted as to the question. Suppose A. sues B. for an assault and battery, and all the evidence shows that B. did assault and beat him. ' as alleged,; and A. testifies that hjis actual 'damages were $1,000 in consequence thereof. No objection is made to this evidence, and this is all; and B. requests the court to charge the jury that A. cannot recover any actual damages. Is it possible it would be error to refuse the charge because the evidence was incompetent? Certainly not. If not objected to, it will support a verdict, as if it were both competent and relevant. Charge 10 was properly refused. It does not assert a correct proposition of law, and, besides, the proposition intended.to be asserted by it was embraced in one of the charges, requested by the defendant, which was . given. — 23 — Charge 15 was properly refused because of its wording. As written it would have tended to mislead or confuse the jury, but aside from this it was. properly refused. The court, under the evidence in this case, should not have instructed the jury that it Avas not the conductor’s duty to know of plaintiff’s wife’s position of peril at the time the speed of the car Avas increased. Charges 16 and 19 were each properly refused, because they assumed as true material facts, which were not admitted, conceded, nor conclusively proven. Both of these charges find substantial duplication in charges given at the request of the defendant. Charge 21 did not state a correct proposition of. law. The judgment of the lower court is affirmed. Affirmed. Dowdell, C. J., and Simpson and Denson, JJ., concur.