43 So. 98 | Ala. | 1907
This case was tried upon the fourth count of the complaint, which was added by amendment. The plaintiff’s injuries are alleged to have occurred while he was in the act of boarding one of defendant’s cars as a passenger, while the car was stationary at a regular stopping place for the reception of pas
We have set out the pleadings in detail and with particul arity, in order that the issues of fact presented by. them may be readily seen. .It is scarcely necessary to say that the burden of proof was upon the plaintiff to establish every material allegation of his complaint. If he failed to show that he was a passenger at the time of hi.s injury, or if that relation between him and the company is shown, and his injuries were caused other than by the negligent act of defendant in putting the car in motion, he was not entitled to recover. In other words, if he was not a passenger at the time he received his injuries, or if he was a passenger and his injuries were caused by his falling over the trunk, which was on the platform, in his attempt to boaid the car while it was in motion, then he has failed to prove the allegations of his complaint, and cannot recover. Of course, if the defendant proved either of its pleas of contributory negligence, this would defeat the plaintiff’s action.
We need only apply these principles to see that the trial court, in his oral charge to the jury, erred in the definition given them of a passenger, to which an ex
There were many other rulings to which exceptions were reserved, and many charges refused to defendant, but what we have said will doubtless suffice for another trial, save, perhaps, charge numbered 42, given at plaintiff’s request. That charge is in this language: “The court charges the jury that one brought into sudden danger by the wrong of another is not expected to act with coolness and deliberation as moved a reasonable man under ordinary circumstances.” It was doubtless the purpose'of the charge to obtain the benefit of the principle: “Where by the negligence of the defendant, or those for whom he is responsible, the plaintiff lias been suddenly placed in a position of extreme peril, and thereupon does an act which, under the circumstances known to him, he might reasonably think proper, but which those avIio have a knowledge of all the facts, and time to consider them are able to see
Reversed and remanded.