46 So. 262 | Ala. | 1908
Lead Opinion
The question asked the plaintiff, when a witness, in reference to her position on the car step, when about to step on the stool and when she discovered the condition of said stool, did not call for a conclusion and sought relevant evidence, as the reply would aid the jury in determining whether or not she was guilty of negligence in stepping upon the stool after discovering its condition; that is, whether or not she made the discovery in time to check her descent. It may be that a part of her answer went beyond a legitimate response to the question, and that the witness volunteered a conclusion as a part óf her answer; but appellant’s motion to exclude went to the entire answer, and did not seek to eliminate so much thereof as was a conclusion, and the trial court will not be put in error for overruling a motion to exclude evidence in its entirety, when some of it is good.
It is insisted that this evidence was not admissible under the pleading, that it was intended for the purpose of showing the plaintiff’s inability to stop after discovering the condition of the stool, and that it could not have been shown without a replication to the pleas of contributory negligence. Counsel evidently loses sight of the fact that the pleas aver that the plaintiff “negligently” stepped on the footstool after discovering its condition. If she did not discover that the stool was improperly set on the ground until it was too late.to reinstate herself on the car steps or to check the downward movement of her body, she did not negligently step thereupon, and this evidence was relevant to negative the defendant’s pleas of contributory negligence.
The trial court did not err in refusing charge 5, the general charge, requested by the defendant. There was evidence in support of the complaint, and wc cannot
The trial court did not err in refusing charge 1, requested by the defendant. If not otherwise bad, it was faulty in instructing the jury that they could not consider the unevenness of the ground where the train stopped in fixing the defendant’s liability under the second count. It is true the negligence charged in the second count was in fixing the stool, yet if the train stopped at a point where the ground was broken, and the stool was placed on broken and uneven ground, the mere act of putting it on uneven ground may have constituted a negligent fixing or placing of the stool. What we say as to this charge relates also to refused charge 9.
Charges 13, 23, and 29, requested by the defendant, were properly refused. If not otherwise bad, they pretermit the plaintiff’s discovery or knowledge of the con
Charge 15, requested by the defendant Avas properly refused. It called for a finding for the defendant on the entire complaint, upon a failure of proof only as to counts 2 and 4, thus pretermitting a consideration of the other counts, and notwithstanding there Avas evidenee in support of counts 6 and 7. Counsel justifies this charge, in argument, upon the theory that the statute of limitations Avas good as to these last two counts; that they Avere introduced by Avay of amendment more than a year after the injury, and were of such character as to not come within the lis pendens, and did not, therefore, relate back to the original complaint. The gravamen of the action, as disclosed by each count of the complaint Avas the defendant’s negligent failure to provide the plaintiff AvitJi a safe place to alight from the train. It may have been that the failure Avas due to an . improper fixing of the stool, the unevenness of the ground upon which it was fixed, or the unevenness of the ground where the train was stopped, and at the point at Avhich the stool was set and she was invited to alight. The averment of one or all of these causes was but the statement of facts setting out wherein the defendant failed to provide a safe place for her to alight from its train. If the stool upon which she Avas invited to step was not properly adjusted, because of the way it was fixed on the ground, and for that reason careened or turned over, the defendant failed to furnish her a safe place to alight. If the ground was uneven, and in consequence thereof
The trial court did not err in refusing charge 19, requested by the defendant. It pretermits the fact that the negligence of the plaintiff proximately contributed to her injury. It is true the charge refers to the pleas; but, assuming that the negligence meant by the charge was the same as what is set out in the pleas, yet the pleas aver that the negligence so set up was the proximate cause of the injury, but which said averment is as to the result or consequences of said negligence, and the word “proximate” cannot be supplied by referring the charge to the pleas, which sets out the acts or omissions constituting contributory negligence, but which cannot excuse the omission of the proximate cause from the charge. The plaintiff may have been guilty of negligence in some slight degree and in some way as set out in the pleas, and which may have contributed to her injury; yet, unless the negligence proximately contributed to her injury, the pleas were not proven, and the defendant
The evidence was sufficient to warrant a verdict for the plaintiff, and in fact the weight of the evidence was favorable to the plaintiff, and her evidence was not contradicted as to the extent of her injury and suffering, and we are not prepared to say the damages were excessive. The trial court did not err in refusing the motion for a new trial.
The judgment of the city court is affirmed.
Rehearing
ON REHEARING.
The application for a rehearing is based on the ground that charge 19, requested by the defendant (appellant), asserts a correct proposition of law, and that this court has fallen into error in holding that the trial court did not err in refusing it. The doctrine of comparative negligence does not obtain in this jurisdiction; and it is time, in negligence cases, that if the plaintiff is guilty of the “slightest degree of negligence,” which proximately contributes to the injury complained of, a recovery should not be allowed. — Birmingham Railway, etc., Co. v. Bynum, 139 Ala. 389, 36 South. 736. But in this case there are sundry pleas setting up, in varying form, negligence on the part of the plaintiff. The legal effect of charge 19 is to remit the jury to these pleas to determine what, negligence is alleged. A charge to a jury should be clear and free from any tendency to confuse, and if not free from such tendency, though it may assert a correct proposition of law, the trial court may refuse it without committing reversible error.—
In the case of Woodward Iron Co. v. Clinton Curl, 153 Ala. 215, 44 South. 969, 973, charge 1 requested by the plaintiff, in this language: “While the injury alone is not sufficient, yet I charge you, gentlemen of the jury, that if you believe from the evidence that the plaintiff, Clinton Curl, ivas injured, and that the negligence of the defendant as charged in either the second, third, fourth, sixth, seventh, eighth, ninth, tenth, thirteenth, fifteenth, sixteenth, seventeenth, or eighteenth counts of the complaint ivas the proximate cause of the plaintiff’s injuries, then you must find for the plaintiff” — was given. Of the action of the court in giving said charge this court said: “While ive will not say the court committed reversible error in giving charge 1, we do say that such charges should never he given, as they tend to confuse the jury.” A number of authorities are there cited in support of the utterance of the court. See, also, Birmingham Railway, etc., Co. v. Hayes, 153 Ala. 178, 44 South. 1032, construing charge 27 requested by the plaintiff in that case. It seems to the writer that the charge here in judgment falls in the. same category with charge 1 in the case cited, and that the vice of a “confusing tendency” inheres in the charge remitting the jury to the pleas.
It is on this ground that he bases his judgment, that the lower court committed no reversible error in refusing charge 19, and that the application for a rehearing should be overruled.
