177 Ala. 400 | Ala. | 1912
— Plaintiff sued defendant, a common carrier of passengers, for injuries suffered by her as a passenger while alighting from defendant’s car. The complaint alleges that Avhile she “was engaged in or about alighting from said car at a point on said railway, to Avit, at or near the intersection of Eleventh avenue and TAventy-Fourtli Street South, in Birmingham, Ala., said car Avas started, jerked, or the speed thereof suddenly increased, and as a proximate consequence thereof plaintiff: Avas thrown or caused to fall,” etc.
Plaintiff’s testimony was to the effect that, when the car stopped at Fifteenth street, she told the conductor to put her off at Fourteenth street; that as the car ap
The court gave a number of written charges requested by defendant, among them the following: “If you believe from the evidence that the plaintiff got off of defendant’s car while it was in motion, you must find for the defendant.” There was verdict and judgment for the defendant, but the court granted plaintiff’s motion for a new trial, and the appeal is from that judgment. The motion for a new trial was grounded on the alleged errors of the court- in giving to the jury eight separate written charges, including the charge above recited."
It was open to the jury.to believe and accept in toto the narrative of either the plaintiff or the witnesses for the defendant. But it is readily conceivable that they
It is argued that, if there Avas error in giving any of these charges, it was harmless, because there was a fatal variance between the complaint and the proof, entitling defendant to the general affirmative charge as requested by it in writing. The complaint lays the venue of the accident, under a videlicet, “at or near the intersection of Eleventh avenue and TAventy-Fourtlx Street South,” while the proof shoAvs it was at or near Fourteenth street. There was no objection to the evidence, which was without dispute, that it occurred at Four
It was not the rule at common law, and it has never been the rule in this state, that every variance is material. Whether in the recent case of Brannon v. Birmingham, Infra, 59 South. 63, the plaintiff sued the municipality for personal injuries resulting from a defect at a certain point in a certain street, and there was a
In the instance case the material fact is the negligent starting or jerking of the car while plaintiff was alighting, and we conceive that the duty of defendant to plaintiff in this regard was exactly the same whether she were alighting at Fourteenth street or at Twenty-Fourth street, while traveling on defendant’s car along Eleventh avenue, in Birmingham. We, of course, do not mean to say that no variance from the locus described in the complaint would be material, but only that the variance here showm was not material on the facts of this case. And this, we believe, is not in conflict with any of the decisions of this court.
It results that the judgment of the city court granting a neiv trial to plaintiff was without error, and must be affirmed.
Affirmed.