O'Brien v. Birmingham Railway, Light & Power Co.

McCLELLAN, J. This action was considered here on a former appeal. — 185 Ala. 617, 64 South. 343. After the appeal the plaintiff (Mrs. O’Brien) died, and the suit was revived in the name of her personal representative, her daughter. Mrs. O’Brien bore the relation of passenger to the defendant as a carrier when she became entangled in a wire attached to the rear of the street car from which she had just alighted at her destination. — 185 Ala. 621, 64 South. 343. One of the issues involved in the previous trial, and in the subsequent review here, was whether the operatives of the car exercised due care and diligence to avert injury to her after they became aware of her peril from being dragged by the wire attached to the car. It was then said: “There was evidence tending to show want of due promptness or care by each of them [operatives] in bringing the car to a stop after plaintiff’s peril was known.” The like issue was of the issues involved on the last trial below. ■ (1) At defendant’s instance the court gave the jury the following special instruction: “No. 1. The court charges the [jury] that, if the presence of the wire attached to defendant’s car was not due to some negligence on the part of the defendant, the motorman and conductor had the right to propel the car forward as soon as the plaintiff’s intestate safely alighted from the car, and got clear of the car, so that she would not have been struck by the car under ordinary conditions, had. no wire been attached to the car.” Our opinion is that this instruction invaded the province of the jury, taking from the jury the plaintiff’s right, created of the evidence, to have the jury determine the stated controverted issue of subsequent negligence vel non on the part of the conductor and motorman, or of either, after he or they became aware of plaintiff’s perilous situation behind the running car. According to the terms of the charge, the unqualified right of the operatives to propel the car forward was avowed, entirely omitting to qualify that right by appropriate reference to the condition of peril made by her situation at the time. It is not reasonably possible to only attribute to the instruction the less grave effect of a tendency to mislead, thereby imposing on the plaintiff the obligation to request explanatory instructions. (2) No instruction can be said to be merely calculated to mislead the jury, when its unavoidable effect is to invade the jury’s [100] province, by excluding from the jury’s consideration a material issue raised by the pleading and the evidence. For this error the judgment must be reversed. (3) Charge 2, given at defendant’s instance, might have been refused without error. Indeed, the wiser course is to refuse charges of that type. — A. G. S. Ry. Co. v. Robinson, 183 Ala. 265, 270-272, 62 South. 813. (4) Charge 3, given for defendant, is to be interpreted as excluding culpable negligence as the proximate cause of the injury to which it had reference. When so construed, the giving of it cannot constitute reversible error. (5) Under the evidence in this case, charge 4, given at defendant’s request, was free from fault. (6) Charge 5 might well have been refused, for it is wanting in the clearness that should characterize instructions to juries. The idea entertained by the writer thereof was well conceived under the evidence; but its expressions should have been freer from misunderstanding. (7) Under the pleadings and evidence there was no error in giving for defendant charges 9, 10 and 12. (8) And likewise charges 11 and 13 were given without error. For the single error noted, the judgment is reversed, and the cause is remanded. Reversed and remanded. Anderson, C. J., and Sayre and Gardner, JJ., concur.