Alabama Great Southern Railroad v. Robinson

ANDERSON, J. — Count 1 of the complaint sufficiently charges the breach of duty owing the plaintiff as a passenger resulting from a negligent failure to safely carry her as a passenger as it had contracted to do. If she was imprisoned in the toilet provided for passengers on account of a defect in the lock or fastenings of the door so that she could not open said door, and she thereby suffered pain or discomfort, her injuries Avould as much result from a failure to safely transport her as a passenger as if she received physical hurt or suffered pain through any other source Avhich constituted a breach of duty on the part of the defendant growing out of the relationship, and which said relationship called for the exercise, by the defendant, of the highest degree of care, skill, and diligence known to persons engaged in such business. The trial court did not err in overruling the defendant’s demurrer to count 1 of the complaint. Whether or not proof of the confinement alone would be sufficient to require the defendant to exonerate itself of negligence we need not decide, as the plaintiff not only proved her confinement in the toilet, but proved other facts from which the jury could infer that the defendant Avas guilty of negligence in failing to have the fastenings to the door in a safe and proper condition. She said that she made every effort to unfasten the door, and there Avas other evidence, growing out of — 269 — the conduct of the trainmen in getting the same open, to create inferences for the jury that the lock or latch was defective, and that her failure to open same ivas not due to her mere ignorance as to how to manipulate the fastenings. The plaintiff says that the porter prized off the lock, while he admitted that he prized the receiver after getting to the toilet through the window. If the lock was in good working order and could have been opened in the ordinary way, it was a little singular that the porter prized either the lock or the receiver, and the fact that he resorted to force instead of the usual way to unfasten the door ivas not only a circumsance tending to show that the fastening was defective, but that the porter knew of same, else he would have attempted to open it in the ordinary way before prizing either the lock or receiver. The trial court did not err in refusing charges 1 and 2, requested by the defendant. Charge 9, refused the defendant, was fully covered by charges 10, 15, and “A.” Charge 16, refused the defendant, was bad. It instructs for the defendant if the mind of the jury “be in a state of doubt or confusion as to whether or not the plaintiff is entitled to a verdict.” The words “doubt or confusion” are disjunctive; and, if either existed, the charge requires a verdict for the defendant; the result is the jury could not, under said charge, find a verdict for the plaintiff if they entertained the slightest doubt as to her right to recovery. Their mind might be in a state of doubt, yet they might be reasonably satisfied that the plaintiff should recover. In other words, this charge, in effect, requires that the proof shall satisfy the jury beyond doubt, and that they must be absolutely positive as to the plaintiff’s right to recover before they can find a verdict for her. Such a charge would — 270 — be bad in a criminal case, wherein a greater degree of satisfaction is required of the jury than in civil cases. This charge is different from charge 6, held good in the Saxon Case, 179 Ala. 136, 59 South. 584, as there the word “confusion” was used alone, and hot disjunctively with “doubt,” as in the present case, and a state of confusion may perhaps be a different term than doubt. If their mind is in a state of confusion, they may not be reasonably satisfied, yet, if their mind be in doubt, they may still be reasonably satisfied, as the state of doubt may be very slight or may not be at all reasonable. While these cases can be differentiated, we think that the charge in the Saxon Case could have been well refused, as misleading, if not otherwise bad, as such charges are delusive and calculated to mislead the jury to the extent that they cannot find a verdict for the plaintiff, unless they are absolutely positive beyond a doubt that he is entitled to recover, and the law does not require such a belief or conviction on the part of the jury. The trial court might not be reversed for giving such a charge as charge 6 in the Saxon Case, supra, as it could be explained by counter instructions, but, as it is calculated to mislead the jury, trial courts should not be reversed for refusing same. It was held in the case of Brown v. Master, 104 Ala. 464, 16 South. 443, that charges using the words “doubt or confusion” were bad. And in the case of A. G. S. R. R. Co. v. Hill, 93 Ala. 514, 9 South. 722, 30 Am. St. Rep. 65, a charge using the words “doubt” and “uncertainty” was condemned. In the case of Calhoun v. Hannon, 87 Ala. 283, 6 South. 291, the court held thafi charge 2 in said case was unobjectionable, though using the words “confused or uncertain,” in the disjunctive. (And in the case of Marx v. Leinkauff, 93 Ala. 453, 9 South. 818, it was held that the giving of such a charge — 271 — was not error, citing the Galhoun Gase, supra. It is evident, however, as noted in the case of L. & N. R. R. Co. v. Sullivan, 126 Ala. 95, 27 South. 760, that the! charge in the Galhoun Gase, supra, was treated as using the words conjunctively, and not disjunctively, as the writer of the opinion in the said Galhoun Gase also* wrote the opinion in the case of Brown v. Master, supra, wherein a distinction was drawn between it and the Galhoun Gase by italicizing the word “or” in the charge in the Broion Gase. This oversight was evidently due to the fact that in deciding the last case the opinion in the Galhoim Gase, which used the words conjunctively, was relied upon, and the court did not examine the charge which used them disjunctively. The case of L. & N. R. R. Co. v. Sullivan, 126 Ala. 95, 27 South. 760, was dealing with charges containing the words “doubt, uncertainty and confusion” conjunctively, and the court only intimated that such a charge might be good if not faulty for another reason, and the court did not hold tlvat it would be reversible error to refuse such a charge. Neither was it held in the Galhoun and Marco Cases, supra, that it was reversible error to refuse those charges, but this court declined to reverse the trial court for giving same. The result is that this court has condemned charges predicated upon a doubt or uncertainty whether used conjunctively or disjunctively, upon the theory that they required too high a degree of certainty upon the jury in finding for the plaintiff, yet. a charge predicated upon a state of confusion alone, or when used conjunctively with doubt and uncertainty, one or both, seems to have been considered correct to the extent of holding that the giving of same was not reversible error. The Saxon Gase, however, holds that the refusal of charge 6 Avas reversible error, and we think that said case was, to this. extent, wrong and — 272 — should be overruled. We now hold that charges predicated upon a doubt or uncertainty, one or both, are incorrect and should be refused. Charges predicated upon a “state of confusion in the mind of the jury” are little, if any, better, as the mind of the jury may be in some slight state of confusion, and yet they may be reasonably satisfied that the plaintiff should recover. Such charges can only muddle judicial waters, and confuse and mislead the juries to the belief that they cannot find a verdict for the plaintiff unless they are clear and positive beyond a doubt or uncertainty, in perhaps the slightest degree, that the plaintiff is entitled to a verdict, thus, in effect, putting upon plaintiffs in a civil suit a greater burden than the law puts upon the state in criminal prosecutions. It will be safe in the future for trial courts to refuse such a charge as it is calculated to mislead and confuse the jury. Whether or not the trial court would be reversed for giving such a charge we need not determine until the question presents itself, but which said question can be avoided by a refusal of same by the trial court. The case of Saxon v. Birmingham R. R. Co., 179 Ala. 136, 59 South. 584, is expressly overruled in so far as it held that the refusal of the defendant’s charge 6 was reversible error. We are not prepared to say that the verdict was palpably contrary to the evidence, or that it was contrary to the charge of the court, .nptwithstanding the court charged that the burden of proof was on the plaintiff. Whether the burden was or was not on the plaintiff, as stated in the first part of this opinion, the plaintiff proved facts from which the jury could infer negligence on the part of the defendant. The judgment of the city court is affirmed. Affirmed. — 273 — Dowdell, O. J., and McClellan and de Graffenried, JJ., concur.