Central of Georgia Ry. Co. v. Mathis

ANDERSON, C. J. (1) While we do not commend counts C and D of the complaint as models of good pleading, or hold that they would not be subject to appropriate grounds of demurrer, if interposed, argued, and insisted upon on appeal, we do not think that either of said counts was subject to the ground of-the demurrer argued and insisted upon in brief of appellant’s counsel, that is, “They count upon simple negligence and wanton negligence.” We think that each of said counts charges willful or wanton misconduct as the proximate cause of the plaintiff’s injury. (2) The trial court did not commit reversible error in overruling the demurrer to plaintiff’s second replication to special pleas 2 and 3 to counts A and B of the complaint. The replication 2 was but a denial of a material part of plea 3, which charged that the plaintiff did the things charged, after being warned not to do so, but this would not prevent her from setting up the fact specially, though the trial court would not have committed reversible error in sustaining the demurrer to the replication to said plea 3, as the plaintiff could have gotten the benefit of same under the general replication. The said replication 2 set up good matter in confession and avoidance of special plea 2. [36] (3) Whether the trial court did or did not err in not letting the defendant ask the witness Ella Shivers, whom the plaintiff was standing there talking with when she (witness) got up and jumped off the train, matters not, as the witness seems to have subsequently answered the question, and which was not excluded. She said: “As I started out of the train I heard plaintiff speak a word or two to somebody, but I don’t know who it was. I never did look back to see.” (4) The defendant cannot complain because the witness Ella Shivers testified, in response to the plaintiff’s question as to the mental condition of plaintiff, that at the time she (the plaintiff) did not know what she was talking about. This tended to establish the defendant’s contention that the plaintiff was drunk or drinking. Moreover, the fact that she did not know what she was talking about at the time had a tendency to weaken the accuracy of the plaintiff’s evidence, which had been unfavorable to the defendant. (5) Charges 2 and 8, refused the defendant, in effect instruct as matter of law that the plaintiff was guilty of contributory negligence for voluntarily stepping or jumping off the moving train. While there are circumstances under which the court could say, as matter of law that a person would be negligent in stepping or jumping from a moving tráin, dépending largely upon the rate of speed the train was going, whether day or night, the surrounding conditions, and whether or not incumbered with bundles, etc. (Hunter v. L. & N. R. R. Co., 150 Ala. 594, 43 South. 802, 9 U. R. A. [N. S.] 848), yet it was for the jury to determine in the case at bar, whether or not the plaintiff was guilty of negligence in getting off of the train, which was not moving rapidly and it being broad daylight. Moreover, the porter was standing near — some of the evidence shows that he had hold of her — and the jury could infer that the act of getting off was not necessarily dangerous and negligent.—Birmingham R., L. & P. Co. v. Girod, 164 Ala. 20, 51 South. 242, 137 Am. St. Rep. 17; Sou. Ry. Co. v. Morgan, 178 Ala. 590, 59 South. 432. (6) Charge 7, refused the defendant, was refused without error, for the reason that, if not otherwise faulty, it pretermits a knowledge on the part of the passenger of the arrival of the train at the destination station, or a proper warning as to the approach of same. It was for the jury to determine whether or not the plaintiff had been properly warned or notified.of the approach or [37] arrival of the train at the particular station in question. While we have only discussed those charges specifically designated and argued in brief , of counsel, the others have not been overlooked, and we do not think that the trial court committed reversible error in refusing any of them. The judgment of the circuit court is affirmed. Affirmed. Mayfield, Somerville, and Thomas, JJ., concur.