119 Ala. 547 | Ala. | 1898
Appellee sued to recover dam'ages for injuries alleged to have been received while a passenger on an electric car operated by appellant, through the negligence of the persons in charge of the car in suddenly starting it while he was in the act of alighting from the front platform. There were no witnesses to the accident, which occurred about eight o’clock on the evening of September 2, 1896, at East TToodlawn, and plaintiff was the only witness who testified in his behalf. The defendant introduced all the conductors and mo tormén who operated cars on that route on the evening of September 2d, each of whom testified that if any accident occurred on his car he did not see it and had no notice or knowledge concerning it. For the purpose of attacking the bona fieles of plaintiff’s claim, and showing that, from motives of self-interest, he had purposely withheld from the defendant all knowledge of and information concerning the accident, defendant’s attorney propounded the following ques
Yet testimonjr tending to show the fact that no notice of or information concerning plaintiff’s accident was given to defendant or any of its representatives preAdously to the instituton of this suit, and that the first intimation had by defendant that plaintiff claimed to have been injured was AArhen the summons and complaint Avere seiwed, AAras offered by defendant and received without objection. Parties have an undoubted right to try their case on illegal eAddence, if they so desire, and if illegal evidence is admitted without objection, it is the right and duty of the jury to giAre it such
At the request of the plaintiff, the court properly instructed the jury that neither the plaintiff nor his counsel owed defendant any duty to inform it that plaintiff had been injured, but, when requested by defendant, refused to charge that, in connection Avitb all the other eAudence in the case, the jury had a right to consider that plaintiff did not inform defendant that he had been injured. As stated above, the fact that no notice or information .concerning the accident had been given defendant, being in evidence, the jury had a right to consider this fact. The latter charge should, therefore, have been given as, in a sense, explanatory of the
The court refused to charge at the request of the defendant that “the undisputed evidence does not show that the plaintiff is entitled to recover in this cause.” The proposition of the charge is strictly true. That part of the evidence which was undisputed clearly did not show that plaintiff was entitled to . recover. But the charge is so worded that it was capable of being- construed byr the average mind to mean that under the whole evidence the plaintiff was not entitled to recover. It is manifestly misleading, and was, therefore, properly refused.
The principle applicable in the case of ordinary railroads operated by steam power, and stopping at regular-stations, that the conductor of a train is required to stop only a sufficient length of time to allow passengers an opportunity to alight l;y the exercise of reasonable care and diligence, and, having so waited, is not guilts7 of negligence in putting the train in motion again while a passenger is in the act of alighting, or otherwise in a dangerous position, unless he knew the fact at the time, or ought to have known it,, has no application in this case. The evidence tends to show that there was only one car, that it was in charge of a conductor and a motorman, that plaintiff had notified the conductor that he desired to get off: at East Woodlawn, that the car was stopped at that station for the purpose of allowing plaintiff, and such others as desired, to alight, and that plaintiff got off from the front platform. Under these
Reversed and remanded.