Birmingham Railway, Light & Power Co. v. Hatton

65 So. 934 | Ala. | 1914

SAYRE, J.

If the first count of the complaint was equivocal and failed, therefore, to meet the exact demands of good pleading in its averment of duty on defendant’s part to furnish plaintiff with a transfer, as appellant contends, the respect wherein it was defective was not distinctly stated as the statute requires that grounds of special demurrer should be, and the defect, since there is no doubt that the count does state a cause of action, can avail defendant nothing on this appeal.— Code, § 5340. It would have been a task of the simplest and most obvious character to demur to the count on the ground that it failed to allege that plaintiff requested a transfer. A demurrer taking that specific ground would have apprised plaintiff and the court of the objection defendant seems to have had in mind and would probably have been sustained.

Plaintiff’s case is that she expected to receive a transfer at Fifty-Seventh street, where two of defendant’s lines crossed, and that-, in consequence of defendant’s refusal and her lack of funds to pay another fare on the line to which she desired a transfer, she was compelled to walk a distance of about a half mile to reach her destination; that she was then convelescent but weak from recent childbirth, and the effort brought on a serious relapse. Plaintiff had boarded the car in the business section of the city, and the defense was based upon a rule of defendant, which was alleged to be in force at the time, to the effect that passengers from that section were not to have transfers at Fifty-Seventh street. In the absence of ordinance or contract providing otherwise, plaintiff was not entitled as of right to a transfer at that point. But she brought testimony which went to show that it had been the particular custom or usage of defendant to give transfers to such passengers at that point, and the effect of the court’s oral charge was to submit to the jury as a question of fact whether there had been any such custom or usage. If so, defendant’s rule to the contrary not having the force and effect of law, plaintiff might have dealt with defendant and ordered her own conduct with reference thereto, as she had a right to do on her version of the facts. Custom and usage, when reasonable and not opposed to law of more definite sanction, make á law of themselves with reference to which passengers may be expected and assumed to conduct themselves. This, in substance, is what the court told the jury as appears from the oral charge as a whole, and occasional lapses from verbal accuracy in the oral exposition of the idea, if indeed there were such, will not avail for a reversal in such case.

Charges in writing made the subject of assignments of error numbered 5 and 6 were refused to defendant without error. They were both misleading, and the last mentioned was a mere argument based upon a partial statement of the facts which, in truth, ignored the gist of plaintiff’s case. In respect to the first mentioned, we may add that defendant was, of course, not responsible for the existence of the fact that plaintiff had not with her the money with which to- pay her fare after she had been refused a transfer with which to continue her journey o'n defendant’s intersecting line as she had intended to do. But plaintiff owed defendant, no duty to be prepared for an emergency forced upon her by defendant’s, wrong, nor can defendant be relieved of responsibility for the full measure of her suffering by reason of the fact that her unpreparedness for a wrong she need not have anticipated, or because, in the exercise of reasonable prudence under all the circumstances, she refused to remain rooted in the spot where defendant’s wrong had planted her. Her lack of money was thus an important factor in the production of the injury suffered, and for it, as for all the proximate results of the wrong done, defendant was responsible if, as the jury found, it committed a wrong in refusing the transfer. Thus in a very just, though limited, sense defendant may have been responsible for results to which plaintiff’s lack of money contributed without wrong or negligence on her part, and so it was that an instruction in the terms of the charge requested might have been construed by the jury as tantamount to an instruction that defendant was not liable for the consequences of a walk she might have avoided if she had been prepared for the emergency forced upon her. The court with like logic and propriety might have been requested to charge that defendant was not responsible for plaintiff’s physical condition, or for her undertaking the journey at all, as, in a way, evidently, it was not, though to have given these bald facts or conclusions in charge as requested might have misled to the jury to a misapprehension of the issues upon which the case properly turned.—Louisville & Nashville R. R. Co. v. Dancy, 97 Ala. 310, 11 South. 796.

There was no error in permitting plaintiff to show where the car would have taken her had she not alighted at Fifty-Seventh street upon the refusal of a transfer. The evidence proved that had she remained on the car she might have alighted ultimately at a point still more remote from her destination with greater inconvenience to herself, with the probability of greater injury in retracing her ivay or prosecuting her journey, and SO' the probability of magnifying her measure of damages. Defendant has no just ground of complaint against the trial court’s ruling on this point.

It hardly seems necessary to add that, defendant Avas not entitled to the general charge.

Affirmed.

Anderson, C. J., and McClellan and de Graffenried, JJ., concur.