Birmingham Ry. L. & P. Co. v. Moore

50 So. 115 | Ala. | 1909

SIMPSON, J.

This action was brought by the appellee against the appellant for damages resulting from an injury claijned to have been received by the plaintiff,' who was a passenger on defendant’s railway, in the city of Birmingham.

The first assignment of error insisted on is to that part of the oral charge of the court as follows, to wit: “I charge you, further, .if you believe, from the evidence, that the car had been stopped, and that the plaintiff was in the act of alighting, and the motorman knew, or by the exercise of reasonable care would have known, that she was in the act of alighting, and that he negligently started the car with a sudden jerk or start, then she would be entitled to recover.” This part of the oral charge was erroneous, in failing to hypothesize that the starting of the car by the motorman was the proximate cause of the injury received by the plaintiff.—Birmingham Railway, Light & Power Co. v. Jones, 146 Ala. 277, 284, 41 South. 146; Huggins v. Southern Railway Co., 148 Ala. 154, 166, 41 South. 856. While it is true that the oral charge of the court must be considered as a whole, yet the oral charge was in the shape of separate distinct legal propositions, laid down for the guidance of the jury, and this part of the charge purported to state a distinct legal proposition in itself; and we cannot see that the other parts of the charge were so connected Avith or referable to it as to relieve it from this error.

The second assignment of error insisted on is the refusal of the court to give the charge requested by the defendant, as follows, to wit: “I charge you that you cannot award the plaintiff any damages for the purpose of punishing the defendant.” There Avas no error in refusing this charge. The plaintiff testified that, just as she was placing her foot on the steps to alight, the motorman looked over his shoulder at her, and the conductor rang the bell, and the motorman started the car with a jerk. If the motorman did see her in the act of alighting, and started the car with a jerk, and she was thereby injured, it was a question for the jury to determine whether the starting of the car was wanton.

The third assignment of error is to the refusal to give the charge: “If you believe the evidence, you cannot find for the plaintiff under the second count of the complaint as amended.” The bill of exceptions does not sIioav that any such charge was requested.

The court properly refused charge 5, requested by the defendant. There was nothing in either the pleading or evidence basing any claim on “increasing the speed” of the car (which implies that it was already in motion), but the claim was that the car “started” with a jerk.

The judgment of the court is reversed and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and Denson and Mayfield, JJ., concur.