Tannehill v. Birmingham Railway, Light & Power Co.

ANDERSON, J. As we view the evidence in this case, there was no room or field for the defense of contributory negligence, and under no aspect of the proof was such a defense available to the defendant, or Avas the ruling as to such a defense prejudicial to the plaintiff. The evidence discloses simply a question of negligence vel non of the defendant, which the special •pleas did not meet, and which could be, and was, controverted by the general issue. The plaintiff’s theory, under the evidence, was that the car had stopped for passengers to alight at a regular stopping place, and while it Avas standing she attempted to alight, and Avhile on the step the said car was suddenly started, whereby she was jerked or thrown off of same. The defendant’s evidence was entirely and solely contradictory of the plaintiff’s theory, and Avas to the effect that the plaintiff was not throAvn off of the car at the stopping place, but voluntarily stepped off through no negligence of the defendant, after the car had passed, the stopping place, and after it had stopped for the station and had started again. If the plaintiff’s theory was correct, she was entitled to a verdict, and the special pleas of contributory negligence did not, and could not preclude her from a recovery. On the other hand, if the defendant’s evidence Avas believed by the jury, and which was the case, as indicated by the verdict, it was but a general denial of the negligence shoAvn by the plaintiff’s proof, and was available under the general issue. There Avas but one issue for the jury, and as to Avhich the doctrine of contributory neg [301] ligence could have had no possible influence; and if there was error in rulings upon the demurrers to the special pleas, or as to charges relating to contributory negligence, it affirmatively appears from the bill of exceptions that it was error without injury. Charge 7, refused the plaintiff, is in the exact language of-the books and could have well been given; but it is a mere abstract statement of the law, which was abstract in the instant case, and the refusal of same was not reversible error. There was no error in giving charge 2 at the request of the defendant. It does not seek to invoke the defense of contributory negligence, but merely instructs a finding for the defendant upon the theory of the evidence. The only negligence made out against the defendant’s servants by the plaintiff’s evidence is the sudden starting of the car after it had stopped on Fifth avenue and Twenty-Third street, the place Avhere plaintiff told them to stop, and before she had alighted. The defendant’s evidence controverts this theory and sIioavs that the car had stopped at the proper place, and the plaintiff did not then attempt to alight, but Avaited until after it had started, and stepped off betAveen stops. If this Avas true, no negligence Avas shown against the defendant’s servants, and the charge hypothesizes the defendant’s theory of the case as shoAvn by the evidence. Charge 3, Avhile using the words “assumed the risk,” does not really invoke an assumption of risk against negligence of the defendant, but merely attempts to invoke the same defense as set up in charge 2; that is, that defendant was not liable if plaintiff got off the car between the stations, and was not throAvn or jerked off, as set up in her evidence. Worded as it is, the charge could have probably been properly refused; but there was no reversible error in giving same. Charges [302] á and 5 are, in effect, the same as given charge 2, and merely seek a finding for the defendant upon proof of its theory, instead of the plaintiff’s theory; that is, that she voluntarily stepped off between stops, instead of being jerked or thrown off while attempting to- alight at the proper stopping place, and after the car had stopped for her to do so. The judgment of the city court is affirmed. Affirmed. All of the Justices concur, except -Dow-dell, C. J., not sitting.