| Ala. | Apr 14, 1914
The first series of the assignment of errors relate to the action of the court in overruling the different grounds of demurrers to counts 1, 2, and 3, respectively, “as amended.” The judgment entry shows no such ruling as those thus assigned as error. The judgment entry shows a ruling by the court as to demurrers to the original complaint and each count thereof, shows.that the complaint was amended and the demurrers were' reinterposed to the complaint .-as
Moreover, if there was any error as to the ruling on the demurrers to count 1, and if properly assigned, it was error without injury, as said count was eliminated from the case by the general affirmative charge for the defendant as to said count.—Woodward Co. v. Andrews, 114 Ala. 243" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/woodward-iron-co-v-andrews-6517078?utm_source=webapp" opinion_id="6517078">114 Ala. 243, 21 South. 440.
It may be that amended plea 5 to count 3 attempts to set up negligence on the part of the plaintiff subsequent to or concurrent with the negligence of the defendant’s servant, after the discovery of the plaintiff’s peril, by continuing to hang on the platform, instead of jumping or falling off, after being warned of the platform and told to “turn loose,” but said plea, if not otherwise faulty, fails to charge that the plaintiff could have safely escaped danger by turning loose and jumping or falling off the train, and was subject to grounds 16 and 17 of the plaintiff’s demurrer. We cannot say, as matter of law, that the rate of speed that the plea avers the train was going was such that the plaintiff could have safely turned loose and fallen, or that he would incur no danger in doing so, or that he did not have the right to think that he would, perhaps, be safer where he was, notwithstanding the warning, as there was no averments that he was conscious of the fact that to* remain on the platform meant certain danger; non constat, he 'may have felt as safe on the train as if he turned loose and fell off Avhile it was moving.
There was no error in refusing charge 1 requested by the defendant. If not otherwise faulty, it pretermits
Charge 2’ was properly refused the defendant. If not otherwise faulty, it placed too high a degree of care upon the plaintiff. The law does not exact of him great care, but reasonable and ordinary care; such care as would be exercised by an ordinary prudent person similarly situated.
The trial court did not err in refusing the general charge as to the entire complaint, as there was evidence in support of the second and third counts, and the first count was charged out. It was a question for the jury as to whether or not the flagman did all reasonable things Avithin his poAver to conserve the safety of the plaintiff after discovering his peril. The jury could well infer that the train would have stopped sooner had the flagman been more prompt in pulling the signal cord, which was.at hand, or he may have had time to step inside and apply the danger signal or stop, or he may have had time to have opened the door to the platform upon which the plaintiff was swinging. It Avas also a question for the jury as to whether or not the plaintiff was guilty of subsequent or concurrent contributory negligence.
Nor are we convinced of the merit as to the variance as suggested in brief of counsel. The complaint does not aver that the train was going at a rapid rate of speed, but that it was rapidly approaching the platform, and
Since the defendant was not entitled to the general charge as to the entire complaint, there was no error in refusing the general charge as to the respective counts, as they are bad in form.—Kress v. Lawrence, 158 Ala. 652" court="Ala." date_filed="1908-11-19" href="https://app.midpage.ai/document/kress-v-lawrence-7363936?utm_source=webapp" opinion_id="7363936">158 Ala. 652, 47 South. 574.
There was no reversible error in the ruling upon the evidence. The only ground insisted upon as to the refusal of a new trial is that the verdict was contrary to the weight of the evidence. Under the rule as laid down in the often-cited cases of Cobb v. Malone, 92 Ala. 630" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/cobb-v-malone-6514331?utm_source=webapp" opinion_id="6514331">92 Ala. 630, 9 South. 738, we cannot reverse the trial court for refusing the motion, as we do not think that the verdict was plainly or palpably contrary to the great weight of the evidence.
■The judgment of the circuit court is affirmed.
Affirmed.