Alabama City G. & A. Ry. Co. v. Bates, 46 So. 776

Alabama City G. & A. Ry. Co. v. Bates

46 So. 776 | Ala. | 1908

ANDERSON, J.

In the judgment from which this appeal is prosecuted it does not appear that there was a ruling upon demurrers to the fourth count. It does appear on a former judgment; but an appeal was prosecuted to this court subsequent to the rendition of said judgment, and the cause was reversed and remanded. *351The case then stood as though such judgment had not been rendered, and the record fails to show any ruling on demurrer since said reversal. — Greely Co. v. Gottingham (Ala.) 39 South. 567. “The general rule is that on a second or subsequent appeal or writ of error the court will not consider matters assigned as error which arose prior to the first appeal or writ of error, and which might have been raised thereon, but were not, or matters appearing in the original record, which might have been corrected on the first hearing, but were not urged.” — 3 Cyc. 398. This court will take judicial notice of the record in the former appeal of this identical case, and the result of same, since it has been suggested to us in brief of counsel. — 3 Cyc. 179; Dawson v. Dawson, 29 Mo. App. 521; Schneider v. Hesse/ 9 Ky. Law Bep. 814; Thornton v. Webb, 13 Minn. 498 (Gil. 457) ;■ Symnes v. Major, 21 Ind. 443. We therefore decline to consider the assignments of error relating to the ruling on the demurrers to the complaint.

Definitions of negligence are numerous and variant, both in text-books and'judicial opinions; but the definition given by the trial judge in the case at bar finds support in the case of Baltimore R. R. Co. v. Jones, 95 U. S. 139, 24 L. Ed. 506. But, whether accurate or not, in the general acceptation, it was not erroreous when applied to the defendant in the case at bar, a carrier of passengers. — So. R. R. Co. v. Burgess, 143 Ala. 364, 42 South. 35; Grey’s Ex’r, v. Mobile Co., 55 Ala. 387, 28 Am. Rep. 729. Nor was there error in the second portion of the oral charge excepted to as to the duty of care and skill due a passenger. — So. R. R. Co. v. Burgess, supra.

The third part of the oral charge, excepted to by the defendant, was bad. The plaintiff did not per se, as matter of law, become a passenger under the conditions set out; yet the trial court assumed that a mere knowl*352edge of the plaintiff’s position, and of Ms purpose to take passage, by the conductor, was the equivalent of an acceptance of the plaintiff as a passenger. It is true there can be an implied acceptance; but it was error to say, in the case at bar, as matter of law, that mere knowledge on the part of the conductor of plaintiff's attempt to board the train, with the intent to take passage, was of itself an acceptance, which inquiry was for the jury. AVhile the entire oral charge should be considered in passing on those portions excepted to, we cannot say that the error complained of was cured by the general oral charge. It is true the court elsewhere charged that an acceptance of the plaintiff was necessary to make him a passenger; yet this did not cure the vice of the portion excepted to, which consisted in telling the jury that the plaintiff became a passenger because of his attempt and intent, if it was known to the conductor, and the effect of which was to tell them that knowledge on the part of the conductor was of itself an acceptance.

The judgment of the circuit court is reversed, and the cause is remanded..

Reversed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.