51 So. 242 | Ala. | 1909
This is an action by plaintiff, as a husband, for lost services due to a personal injury received by his wife, while a passenger on defendant’s electric car, in being thrown from it, while alighting at her destination, by a sudden starting or increase in speed of the car. The complaint originally consisted of three counts. The third was withdrawn by amendment. Each count charged simple negligence only.
Defendant filed six special pleas of contributory negligence. Demurrer was sustained to the second plea, charging plaintiff’s wife with negligence in riding on the platform, in violation of defendant’s rule published in the car. The rulings on demurrers to the complainr, are not insisted on. The remaining special pleas, demurrers to which were overruled, charged contributory negligence in riding on the platform Avithout properly holding on, and in alighting from the car, in the dark, and encumbered Avith bundles, while it was in motion:
Defendant’s evidence tended to show that the plaintiff’s wife attempted to alight before the car reached its usual stopping place for discharging passengers, and while it was moving; that it was dark, and that she had bundles in one hand and a can in the other; that «he stepped off of her own accord and fell, the car not stopping till it reached the usual stopping place for ■discharging passengers; that the conductor called “All out for Ensley” while the car was still in motion, and that it did not come to a stop after he .announced the name of the station and until after the plaintiff’s wife had fallen; that the car plaintiff’s Avife was riding on was following another car, and would slow up to permit it to get far enough ahead, and then start again forward, but never did come to a stop till it reached the terminus, where passengers were accustomed to get ■off. The evidence of the defendant also tended to contradict the alleged serious character of the plaintiff’s wife’s injuries.
The action being that of the husband, the measure of damages was for loss of his wife’s services and society.
The allegations of the complaint were sufficient, as to the character and extent of the injuries received by the passenger, to allow evidence as to the loss of voice in consequence of the injuries, though the loss of voice is not specifically alleged. It is not required to aver in specific terms each injury or pain suffered. The injury, its character, nature, and extent, may be sufficiently averred, without detailing, enumerating, or specifying each separately. The loss of voice might well be included in some of the injuries alleged. The loss of the wife’s voice was certainly an element of the damages suffered by the husband in consequence thereof. If the complaint was too general in its averments as to the nature, character, or extent of the injuries suffered and complained of, the defendant should have had this corrected by a demurrer to the complaint.— Henry’s Case, 139 Ala. 166, 34 South. 389; 16 Ency. Pl. & Pr. 377-383, and notes: See, also, Curran v. Strange, 98 Wis. 598, 74 N. W. 377.
If there was ex’ror in overruling defendant’s objection to the question, “What was the fare to Hopkins-ville, Ky.?” it is not made to appear. We can see no objection to the question itself. The apparent answpr to it might or might not be competent or relevant evidence, depending upon other evidence or other facts necessary to make it relevant or. irrelevant. The objection to this question was not followed up by .objec
Charges 1, 2, 18, and 20, each, as appellant admits, asserted, in varying language, the same proposition, that it was as matter of law contributory negligence on the part of the passenger in this case to step from the car voluntarily, and consciously, encumbered with bundles, in the dark, and while it was moving, and had not reached the regular stopping place for the discharge of passengers. Each of these charges were refused to the defendant, and properly so. It may, or may not, be negligence for a passenger to step from a moving car or train in the dark, encumbered with bundles. This depends upon the kind of car or train, its construction, the speed of the car at the time, the size and character of the bundles, the condition of the passenger, age, health, etc., the place, time, and occasion of alighting, etc. While some of these charges hypothesized some of the conditions which would make the passenger liable, no one of them hypothesized all. For example, suppose an ordinary electric car is slowing up to. stop and is barely moving, and a passenger step off with some small bundles in his hand; can it be said as matter of law that this is contributory negligence?. .We think not. If so, nearly all Avho ride in such - cars are uniformly guilty of contributory negligence. ' There may be some who do not. If so, they are the exception and not the rule. If the passenger be encumbered Avith heavy bundles, the car moving rapidly, he would be guilty of contributory negligence. It is the apparent danger of the act that renders it negligence. In the one case, the danger is apparent; in the other it is not, if
We do not think the facts hypothesized brought the charges within the rule announced in any one of these two cases, declaring such acts or facts as matter of law are negligent. — Elliott on Railroads, vol. 4, §§ 1628, 1841; Hutchinson on Carriers, vol. 3, § 1177 et seq; Hunter’s Case, 150 Ala. 594, 43 South. 802, 9 L. R. A. (N. S.) 848. And if it could be said to have been error to refuse any one of these charges it was without injury. It affirmatively appears that the trial court gave one or more charges requested by defendant which unquestionably instructed the jury correctly upon the identical and only proposition of law involved in each of these charges refused.
It is conceded by appellant that, if the plaintiff was entitled to recover, he was entitled to recover the -amounts which were reasonably expended by him in the way of nursing and treatment of his wife, rendered necessary on account of her injuries; but it is insisted that the evidence to establish the various items, the salary of the nurse, the cost of her board, lodging, and
The same is true as to the charges asserting that plaintiff could not recover the amounts paid the doctors for treating and attending his wife on account of the injuries inflicted by defendant, because not shown to be reasonable. Neither the trial court nor this court can know that these amounts were unreasonable. They are as liable to be less than the reasonable value as to
Suppose A. sues B. for an assault and battery, and all the evidence shows that B. did assault and beat him. ' as alleged,; and A. testifies that hjis actual 'damages were $1,000 in consequence thereof. No objection is made to this evidence, and this is all; and B. requests the court to charge the jury that A. cannot recover any actual damages. Is it possible it would be error to refuse the charge because the evidence was incompetent? Certainly not. If not objected to, it will support a verdict, as if it were both competent and relevant.
Charge 10 was properly refused. It does not assert a correct proposition of law, and, besides, the proposition intended.to be asserted by it was embraced in one of the charges, requested by the defendant, which was . given.
Charges 16 and 19 were each properly refused, because they assumed as true material facts, which were not admitted, conceded, nor conclusively proven. Both of these charges find substantial duplication in charges given at the request of the defendant.
Charge 21 did not state a correct proposition of. law.
The judgment of the lower court is affirmed.
Affirmed.