43 So. 222 | Ala. | 1907
This action was commenced by Jesse McNab, suing by his next, friend, Alf McNab, against, the Central of Georgia Railway Company, a corporation, to recover damages on account of personal iniuries alleged to have3 been suffered by the plaintiff while a passenger on one of defendant’s trains and through the negligence of the defendant. Plaintiff recovered a judgment against the defendant in the. circuit court, from which judgment the defendant has appealed. Pending the appeal the next friend (lied, and the cause has been revived in this court in the name of G. S. McDowell, Jr., as next friend. This is the proper practice in such staff3 of the case.—14 Ency. of Pl. & Pr. 1002 (4.)
In the complaint special damages are claimed for loss of time and for money expended for medicines and physicians’ services. If it should he conceded that such damages are not recoverable by a minor, yet there is no
It was admitted on the trial that Alf McNab was the father of the plaintilf. That the father is entitled to the services of an infant son, and may recover for the loss of them occasioned by the wrongful or negligent act of another, as a general proposition, may be conceded. The right of recovery for such loss is founded, not on the parental relation, but on the technical relation of master and servant.—Durden v. Barnett & Harris, 7 Ala. 169; Lyon v. Bolling, 14 Ala. 753, 48 Am. Dec. 122. But the father may emancipate the minor son, and thus relinquish all claim to his sendees or the earnings of his industry; aud emancipation may be shown, as may any other fact., either directly or by circumstances from which the jury would be authorized to infer the fact of emancipation. And the. law will permit an emancipated minor to recover for loss of time occasioned by a personal injury caused by the negligence of a defendant.—Lyon v. Bolling, supra; Forbes v. Loftin, 50 Ala. 396; Benziger v. Miller, 50 Ala. 206. It cannot be said that the record affords no evidence from which the jury was authorized to infer the fact of emancipation. Therefore1 evidence of time lost by the plaintiff and the value thereof was properly admitted.
In respect to the claim for 'money expended in employing a physician and for medicine, the complaint alleges that the plaintiff had to expend large sums of money for physicians and medicine. Under these averments it was competent to show that a physician did attend upon the plaintiff during his illness, that medi
The evidence tended to show that the plaintiff at. the time he received the injury was at work for himself and was getting for his labor from 50 to 60 cents per day. He received the injury in September, 1904, and the cause was tried on the 23d day of May, 1905. The plaintiff was allowed to prove the value at the time of the trial of the kind of labor he was doing when he was injured. This we think was error, but without injury to the defendant, as the record affirmatively shows that the price of such labor at the time of the trial was the same as when the injury was received.
It is alleged in the complaint that the defendant failed to allow plaintiff a reasonable time in which to alight from the train after reaching the station to which
The evidence showed that the plaintiff was on the car set apart for colored people, and a car length from the platform udiieh Long dismounted from and returned to the car. So the condition of the platform wdiere Long was w'as not competent or relevant evidence, and should have been excluded. For the same reason the evidence of Belle Cobb, objected to by the defendant, Should have been excluded. Grant’s evidence, objected to by the defendant, should have been excluded. It is not in the same category with the evidence of Dr. Long with respect to the time the train stopped. Long had testified that he could not tell how long the train
The demurrer to the complaint was properly overruled. The averment that the plaintiff’s mind had become injuriously affected is a statement of fact.' It was not necessary to good pleading in this respect for the pleader to set out in detail the manner in which the mind of the plaintiff was affected, or to give the symptoms which characterized the affliction.
There is no evidence; in the record which tends to show that plaintiff expended any money for medicine' or for a physician’s services. Tlierefore the proof did not meet the averments of the complaint in respect to these items of damages, and the parts of the oral charge of the court designated as “(!)’•* and “(2)” should not have been given. That portion of the general charge of the court excepted to and marked “(3)’’ is an invasion of the province of the jury and constitutes reversible error.—Ala. Min. R. R. Co. v. Jones, 114 Ala. 519, on page 533, 21 South. 507, 62 Am. St. Rep. 121; Decatur Car Wheel Co. v. Mehaffey, 128 Ala. 242, 29 South. 646.
The complaint contains no allegations to the effect that the plaintiff’s capacity to earn wages has' been permanently diminished, and therefore the fourth paragraph of the oral charge of the court should not have been given.
The fifth paragraph of the' oral charge, is erroneous in hypothesizing that, if the employee's could have by due diligence known of plaintiff's perilous position, etc. The law charges a carrier with actionable negligence when, with knowledge of a passenger's perilous position, it fails to take proper steps to avert injury, or does an act, with such knowledge or reason to know, which causes injury to the passenger. But without such knowledge the carrier may act upon the presumption that the passenger will exercise clue care to avoid perilous positions.—Birmingham Union Ry. Co. v. Smith, 90 Ala. 60, 8 South. 86, 24 Am. St. Rep. 761; Montgom
The complaint avers in the first count that “as soon as said train stopped at Comer said plaintiff started to leave the train upon which he was a passenger as aforesaid and upon which lie rightfully ivas, and had gotten as far as the platform of the car upon which he was when said train stopped, which was part of said train, when defendant negligently and ivrongfully, and in violation of the duty that defendant owned plaintiff;' to allow him a reasonable length of time to alight from said train, started the train to moving off, liy which wrongful and negligent conduct plaintiff ivas thrown from said platform to the ground upon his head, in consequence of which plaintiff was made unconscious,” etc. That all intendments must he taken against the pleader is a well recognized rule of pleading. Apptying this rule to the foregoing averments,'the only reasonable construction of the complaint is that the plaintiff was thrown from the train when it started to moving off at Comer, and that he was thrown by the “moving off’’ of the Train. The undisputed evidence as to the place where1 he fell from the train shows that he was 300 yards from Comer, and after the train had attained a speed of at least 15 miles per hour. Further,, the plaintiff gives the only account of where, and how he fell from or left the train, and we note this as his only explanation, viz.: “And before I was able to get off said train it started from said station, and in some way after said train had got some distance, from said station — do not know how far — I in some way fell off' said train. I do not know how I got off. I do not know whether Í fell off, or was pushed off, or was knocked off, or how it was I fell off, said train.” It. seems clear to us that a fatal variance is shown between the averments of the complaint and the evidence as to the time, place, and cause of the, injury. A like criticism is applicable to the second count, and the evidence. In this state-of the case the defendant was entitled to' the. general affirmative charge, as requested by it in charges.
In this view of the case, there is no necessity for considering other charges refused to the defendant, nor the motion for a new trial. For the errors pointed out, the judgment of the circuit court is reversed, and tlie cause is remanded.
Reversed and remanded.