60 So. 981 | Ala. Ct. App. | 1913
The second count of the complaint, after averring that the defendant was a common carrier of passengers for hire or reward, by means of cars operated by electricity, which said cars, among other places, ran on a street in the city of Birmingham, Ala, known as Twentieth street; that on the 24th day of December, 1909, the plaintiff became a passenger on one of the cars of the defendant, and that her destination was the Louisville & Nashville station on said line of the defendant; attributed an alleged injury to the plaintiff to the wrongful and negligent failure of the conductor in charge of the car to stop said car, as it was his duty to do so, at said Louisville & Nashville Railroad station a sufficient length of time to allow plaintiff to alight from said car, it being alleged that plaintiff was wrongfully and negligently carried by said station for one block, when she got off said car during a heavy fall of rain, etc. This count was demurred to upon grounds, among others, suggesting the failure of its averments to show with sufficient certainty what duty the defendant owed the plaintiff, or wherein or how the defendant violated any duty which it owed to the plaintiff. It is a settled rule
The fourth count follows the language used in the second count, except that the failure of the conductor to stop the car at the place mentioned was alleged to have been willful or Avanton. That amounted to no more than saying that the conductor willfully failed to do a thing not shown to have been his duty to do. This count also Avas subject to the demurrer because of its failure to shoAV the existence of the duty claimed to have been breached.
We are not of opinion that either of the other counts of the complaint was subject to demurrer on any of the grounds assigned against it.
In the course of its oral charge to the jury the court stated: “Now the laAV places upon the plaintiff the burden of reasonably satisfying you of the fact that she Avas a passenger on that car that day; in other words, establishing the relationship between passenger and common carrier, and by the negligence of the defendant she Avas made sick and inconvenienced, all of which Avas the proximate result of having to take a Avalk through the water and through the rain Avkicb Avas then falling.” Immediately following this statement Avas a statement to the effect that, AA^hen this is done, the burden shifts to the defendant to.rebut the alleged negligence of the defendant, to which latter statement an exception was reserved. It is apparent that the statement of the court as to Avhen the burden of proof is shifted to the defend
It is not deemed necessary to consider other questions presented, as they are such as are not likely to arise on another trial.
Reversed and remanded.