53 So. 915 | Ala. | 1910
Appellee sued appellant to recover damages for personal injuries sustained through being thrown from one of appellant’s electric street cars while he was a passenger thereon. The negligence alleged is that, the conductor ordered plaintiff from a safe place on the car to an unsafe place, and in that, while plaintiff was passing from one place to the other or while in the latter place, the appellant, “by and through its servant or agent” in charge of said train (alleged to have
It is insisted by appellant that its demurrer should have been sustained to the second count of the complaint, for that said count failed to properly allege or to show that appellant was guilty of any actional negligence in causing the sudden jerk or lurch of the train/ that the latter alternative as to the jerk or lurch of the car is insufficient, and therefore renders the whole count-bad. We cannot agree to this conclusion. It is the duty of a common carrier to exercise a very high degree of care and caution, to the end of so operating their cars or carriages that injuries to passengers from sudden jerks, jars, or lurches, may be avoided. — Hutchinson on Carriers, § 924.
Count 2 alleged the relation of carrier and passenger, and sufficiently showed a breach of the duty owed by the former to the latter, and injury in consequence thereof; and was therefore sufficient. The count is distinguishable from the counts considered in the cases of Mobile Co. v. Bell, 153 Ala. 90, 45 South. 56; Birmingham Co. v. Parker, 156 Ala. 251, 47 South. 138, and Birmingham Co. v. Weathers, 164 Ala. 23, 51 South. 303. The count was sufficient under the rules announced in the cases of Central of Georgia Railway Co. v. Freeman, 134 Ala. 354, 32 South. 778 and Highland Co. v. Miller, 120 Ala. 543, 24 South. 955.
Plea 7 set up a good defense to the entire complaint and to each count thereof. It set up or alleged facts which, if true, affirmatively showed that plaintiff was guilty of contributory negligence, and that such negligence proximately contributed to liis injury. It was not subject to any of the grounds of demurrer interposed, and the court erred in sustaining the demurrer thereto.
The court also erred in refusing charge 8, which was as follows: “If you believe from the evidence that the speed of the car was suddenly increased, or the car was suddenly jerked or moved by the motorman of the car without any signal or co-operation by the conductor, then you cannot find for the plaintiff under the second count of the complaint.”
The second count relied solely upon the negligence of the conductor, and it is alleged that he caused the sud
We do not think that count 2 is susceptible of the construction that it alleged negligence as to any one except the conductor, as is alleged by appellee. It ascribed the negligence, both in giving the order and in the movement of the car, to the conductor and to him alone.
Charges 6 and 7 were properly refused, because argumentative, if for no other reason.
Reversed and remanded.