Alabama City G. & A. Ry. Co. v. Ventress

DOWDELL, C. J. While the rulings of the trial court on the demurrers to the complaint are assigned as errors, these assignments are not insisted oh in brief of counsel for appellant, and hence will not be considered by us. The defendant filed 20 pleas to the complaint. The two first were pleas of the general issue, and the remaining ones, special pleas of contributory negligence to the counts in simple negligence. Demurrers were interposed to these special pleas and sustained as to all except those numbered 12, 13, 18, 19, and 20, and upon which latter pleas together with the turn first issue urns joined and the trial had. The court’s ruling in sustaining the demurrers to the several special pleas mentioned is now assigned and insisted on as error. The [289] alleged contributory negligence set up in all of tlie pleas consisted in the plaintiff’s being and riding upon the platform of the car, which was a street railway car propelled by electricity. The defendant had the advantage of every defense set up in the pleas to which demurrers were sustained that it ivas legally entitled to under the special pleas of contributory negligence on which issue was joined, and hence, if there was error in sustaining the demurrer to any one of 'the other special pleas, it was error without injury. The question asked the witness, Glenn, and to which objéctions were made by the defendant, and overruled by the court, did not call for irrelevant evidence. The objections were general. The point taken in argument was not made as a ground of the objection, and the court will not be put in error in ruling on a general objection, unless the answer called for is plainly illegal and irrelevant. Charge 7, refused to the defendant, was misleading, if not otherwise faulty. This charge was open to the interpretation that the jury must find for the defendant if the plaintiff’s conduct contributed to the injury com-' plained of, though ever so remotely. Whether riding upon the platform of a street car is negligence per se has been differently ruled in different ¡jurisdictions, but the weight of authority seems to make this question one dependent upon special circumstances, and such has been our holding.—Birmingham Ry., L. & P. Co. v. Bynum, 139 Ala. 389, 36 South. 736. Charge 10, refused to the defendant, stated the law as laid down in Bynum’s case, supra, and its refusal was error. The legal proposition contained in this charge .was as to presumption arising on the facts stated and the burden of proof required to meet this presumption. [290] Bynum’s case, supra, states the rule in this regard, and we are not disposed to depart from it. Charge 11, refused to- the defendant, finds substantial duplication in charge 15 given for the defendant. These charges are not only similar, but, when referred to the evidence, are substantially the same. The evidence is without dispute that but for the collision the accident resulting in the injury would not have occurred. The first count of the complaint is general in its averment as to the negligence causing the injury. Charge 13, requested by the defendant, ignores, the evidence as to the slippery condition of the track, and it was open to the jury to find that the motorman, with knowledge of such condition of the track, negligently failed to put his car under control so as to be able to stop before reaching the railroad crossing. We state this in reply to the argument made by counsel, why the charge should have been given. But aside from this the charge was abstract. The undisputed evidence showed that the collision and accident was the result of a failure to stop the car within a hundred feet of the crossing as the law requires. That portion of the oral charge excepted to, in which the court instructed the jury as to what it took to constitute simple negligence, was erroneous. The definition of simple negligence given by the court eliminated all consideration of unavoidable and inevitable accidents. There was evidence which tended to show that the accident was unavoidable, and by the oral instructions of the court excepted to the defendant was deprived of the benefit of this phase of the evidence, and it does not appear that injury to the defendant did not result from it.—Ala. City, G. & A. Ry. Co. v. Bullard, 157 Ala. 618, 47 South. 578; Ala. Consol. Coal & Iron Co. v. Heald, 168 Ala. 626, 53 South. 162. [291] For the errots pointed out in the oral charge of the court, the judgment is reversed and the 'cause remanded. Reversed and remanded. Anderson, McClellan and Sayre, JJ., concur.