59 So. 66 | Ala. Ct. App. | 1912
The appellee, the plaintiff in the court below, brought an action against appellant, the defendant in the court below, to recover damages for injuries, alleged to have resulted from the negligence of the appellant, and alleged to have been sustained while she was the passenger of appellant and engaged in the act of boarding appellant’s coach.
In its first assignment of error the appellant insists that the trial court erred in permitting appellee’s counsel to ask her the question, “Do you find yourself more nervous now than before?” and it is insisted that nervousness, or injury to the “nervous system,” was not averred in the complaint, and that the testimony to be elicited by said question was incompetent, irrelevant and immaterial. Appellant’s contention is without merit. The court did not err in permitting the question to be propounded to the witness, nor did the court err in permitting the witness.to testify that she was more
At the request of the appellee, the court gave to the jury the following written charge: “If from all the evidence the jury is reasonably satisfied that the plaintiff Avas in the act of boarding defendant’s train as a passenger thereon, that the conductor of defendant’s train had assisted plaintiff upon the platform of said car, and there left her,, and that before plaintiff, had had time to enter the car, and procure a. seat, that defendant’s
The appellee was appellant’s passenger at Pell City, Ala., for transportation from said station to Coosa Valley. In respect to the duty that ordinary steam railroads owe their passengers with respect to their getting on and off trains, the following quotation, in which the italics are ours, correctly and succinctly states the law: “Trains on such railroads are run on schedules. They stop only at designated stations, to receive and discharge passengers. The conductor knows- in advance how many passengers are to alight at a given station. He may therefore determine with sufficient accuracy Avhat would be a reasonable time for the train to stop to enable passengers for'-that station to alight by the
The appellee was appellant’s passenger, and as such passenger appellant owed her the duty of holding the train for a sufficiently reasonable time to enable her to
The evidence for the appellee tended to show that she was assisted to the platform by the conductor of the train and that before she entered the door, or immediately after she had entered the door, the train Avas violently put in motion by the engine and others cars striking against the coach she was then entering, or trying to enter, and that she Avas thereby jerked up and against the door and was on the rebound of the train jerked back into the arms of her husband, and that her injuries resulted from this violent jar of the coach. If this evidence was true, and that was a question for the jury, the conductor certainly kneAV, or should have known, of her position on said coach. It was on the conductor that the Iuav imposed the duty of holding the train for a sufficient reasonable time to. permit the appellee to reach her seat in safety.—Birmingham Union Ry. Co. v. Smith, supra.
The only hypothesis upon ivhich the charge could possibly be said to be defective is that it fails to set up in express terms that the “jolt” occurred before the appellee had been - given a “reasonable” time within which to obtain a seat in the coach. When read in the light of the evidence, however, it is apparent that the time that must have intervened from the moment appellee was left by the conductor on the platform to the time when the train was put in motion was not a reasonable time for her to have obtained a seat on the train. The appellee testified: “I got to the door as quick as I could to get a seat, but couldn’t get through. When I got to the door it jerked me back. The conductor at that time was not helping me. He left me when I got up in the door.”
The testimony of the conductor, engineer, and road-master, all of whom were appellant’s witnesses, tended to show that there was no jerk, sudden jerk; lurch, jar or unusual movement of the train at all. The engineer, however, testified that the train urns not coupled up until it was ready to leave Pell City, but that in the act of coupling there wras no unusual jar or jerk in the manner of the coupling. In other words, the testimony of appellant tended to show that the injuries complained of did not result from any movement of the train at all. The question, therefore, for the jury, was not whether the appellee had a reasonable time within which to obtain her seat on the train after the train had jerked, but only whether there was a jerk at all. The court did not err in giving the charge.—Central of Ga. Ry. Co.
Even if tve are mistaken in the above views as to the technical accuracy of the charge, the most that can be said in criticism of the charge is that it may have possessed a misleading tendency, in that it failed to qualify the Avord “time” used in the charge Avith the Avord “reasonable,” thereby making the charge say, in express terms, “reasonable time,” instead of merely “time.” From Avhat Ave have above said it is evident that Ave do not think that the charge possessed a. misleading tendency, or that, if it by any possibility possessed such tendency, the jury were misled thereby. If the charge had a misleading tendency, it Avas, as we read it, one more favorable to the appellant than to the appellee, in that, under the terms of the charge, if the appellee had time — no matter Iioav short — in Avhich to obtain a seat in the coach, then she Avas not entitled to recover, although that time Avas not that reasonable length of time Avhich the laAV gave her Avithin which to obtain a seat.
At any rate, trial courts will not ordinarily be put in error for merely giving charges Avhich may possess misleading tendencies. The party against whose interest such a charge is given has the opportunity of asking for and obtaining from the trial court an explanatory charge correcting the misleading tendency of the given charge. This rule is so Avell established that Ave cite no authorities to sustain it.
The- appellant requested the trial court to give three different charges, and insists under the third, fourth, and fifth assignments of error, respectively, that the court erred in refusing to give said charges. Each of the charges is based upon the theory that there Avas a variance betAveen the allegations and proof.
The judgment of the lower court is affirmed.
Affirmed.