48 So. 981 | Ala. | 1909
The necessary continuity of the time, from the main trial to the date of the attempted authentication of the purported bill of exceptions for that trial, within which it should, to be effective, have been signed, was broken by the effort of the court, instead of the presiding judge, to extend it. — Scott v. State, 141 Ala. 39, 37 South. 366; Arnett v. Western Ry., (Ala.) 39 South. 775; Western Ry. v. Russell, 144 Ala. 142, 39 South. 311, 113 Am. St. Rep. 24. Hence, so far as the main trial is concerned, the paper purporting to be a bill of exceptions thereon is valueless.
Counsel for appellant insist that this paper is at least a valid hill of exceptions to bring up for review the action of the court below in overruling the motion for a new trial. The motion was regularly retained on the proper docket of the court until December 29, 1906, on which date it was overruled. In the order overruling
The rulings on the pleadings will be first considered. The. judgment, as here important, recites: “This day came the parties by their attorneys, and by leave of the court first had and obtained the plaintiff amends her complaint by interlining count three (3) and by adding thereto counts numbered six (6) and seven (7). And the plaintiff withdraws count four (4) of the complaint, and the defendant’s demurrer to- the complaint being argued by counsel and understood by the court, it is considered and ordered by the court, and it is the judgment of the court that the said demurrer to the com
Counsel for appellee take the point, and stress it in brief, that the judgment entry shows a ruling on demurrer to the complaint as a whole. Counsel for appellant controvert this contention, and insist that the recital quoted evinces a ruling overruling, not only that part of the demurrer expressly addressed to the whole complaint, and as well those addressed to each count, including count 5, but also overruling the separate demurrer to count 7. In support of appellant’s view we are cited to the case of A. G. S. R. R. v. Shahan, 116 Ala. 302, 22 South. 509, from the transcript of which a judgment entry very similar to that with which we are now concerned is copied in brief. There the court took no notice of the question at hand; and, though the conclusion therein reached might have been different, had the point been taken, that decision is not authoritative, for the very reason that no ruling on the present point was made. In short, the question was not considered or de
We construe the recital to show only a ruling on demurrer to the whole complaint, and not upon demurrers covering separable parts of the complaint. Such was the conclusion of this court in Griel v. Lomax, 86 Ala. 132, 5 South. 325, upon substantially the same inquiry we now have. In that case the complaint contained two of the common cóunts and one special count, and the judgment entry recited “that the defendant demurred to the complaint,” and that the court sustained the demurrer; but the demurrer copied into the transcript is addressed only to the special count. The plaintiffs then amended their complaint by adding another special count, and the defendant then demurred “to the complaint as amended,” but his demurrer was overruled. Upon this status the court said: “The demurrer, as shown by the judgment entry, is taken to- the entire complaint, as amended, and not to any particular count supposed to be defective.” In our recent case of Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 South. 239, the Griel-Lomax decision was, in substance and effect, folloAved.
The presumption, on appeal, of the correctness' of the action of the primary court, must be affirmatively overcome by recitals in the transcript presented here, before
Counsel for appellant have presented an elaborate argument in support of their contention that neither the complaint, nor any count of it, states a cause of action, and hence will not support the judgment; and the ground of the insistence is that no primary duty rests on the defendant, as a common carrier of passengers, to without being sought for the information, inform a passenger of the necessity to change cars in order to reach his destination, as indicated by his ticket.or otherwise properly secured right to transportation to a destination beyond a point at which, to reach that destination, the passenger must change cars. The argument is so earnest, as well as elaborate, we feel impelled to respond to it; for, if the contention is sound, a reversal would resuit.
While the question in hand has not been, so far as we are now advised, the subject of adjudication apart from
The first-quoted text is based upon the decisions of the New York courts in Page v. N. Y. Central R. R., 6 Duer, 523, and later, after revivor in the name of Barker, was taken to and affirmed by the Court of Appeals., and reported in 24 N. Y. 599. Page bought a ticket from Albany to Lyons. The defendant operated two trains, leaving Albany within an hour of each other, on which Page’s ticket was good. One of these ran through Lyons, and the other ran to Syracuse, at which point, to reach Lyons, a change of cars from that train was necessary. Some of the testimony for the plaintiff tended to show that the ticket agent at Albany told the plaintiff that the Syracuse train, taken by the plaintiff, would take him to Lyons. This was controverted. Some of the testimony for the' defendant tended to show that the plaintiff was informed, or was offer
From the quoted texts, as well as from the observations of the court in the Page Case, it is -seen that a primary duty rests on the carrier of passengers to give publicity to its regulations, whether of schedule, including places whereat its train will stop for the discharge or reception of passengers, or of routing on its roadway, embracing points of change to another line of its roadway or that of another company, to the end that the ordinarily prudent and intelligent- traveler may be informed of the facts essentially necessary for him to accomplish his journey. The reason for such duty inheres in the nature of the service afforded bjr such agencies, in connection with the power possessed by carriers to formulate and enforce such reasonable regulations as the conduct of the business requires. Within proper limits, they may make schedules, create routes and prescribe transfer points at which passengers, traveling beyond, must change cars. Having this power, it would be wholly irrational to say that no duty, commensurate with the power, rests on the carrier to advise the traveling public, by reasonable means, of regulations so necessary to any journey by rail; for such a pronouncement would essentially, cast upon the passenger the obligation, not simply to exercise reasonable prudence and diligence to ascertain the regulations, with respect to where, when, and how his journey may be made under regulations existing and published, but to seek out unpublished regulations the operation of which affect his journey. The result would be, naturally, that no carrier of passengers would make any effort to give publicity to its regulations touching matters associated with the employment of its transportative agencies. The decision of A. G. S. R. R. Co. v. Garmichael, 90 Ala. 19, 8 South. 87,
By brief of counsel for appellant we are advised that the case was tried on counts 5, 6, and 7. Count 6 ascribes the negligence complained of to have been that of the conductor in not notifying her of the necessity to change cars at Union Springs, in order to- seasonably pursue her journey to Andalusia. Counts 6 and 7 ascribe the negligence to the defendant, or its agents oí servants, in not so informing the plaintiff. We are dealing with the complaint only, with a view to determine whether the complaint states a cause of action. In the light of the considerations stated, we must hold that these counts do each state a cause of action, though, if assailed by properly grounded demurrer, we are not prepared to say, and are not now so invited, whether these counts would be immune therefrom.
Recurring to the motion for a new trial: The only errors urged.and argued, aside from the rulings on the pleadings which have been considered, are that the affirmative charge, requested for the defendant, should have been given, on the grounds, first, that there was a failure of proof, in that the motive power was alleged to have been steam, and there was no proof in support of it; and, second, that the affirmative proof shows that
There was testimony tending to- support the averments of counts 5, 6, and 7, and on it the jury were authorized to base a verdict for the plaintiff. The insistence that the affirmative evidence must prevail over that purely negative, as stated before, cannot avail, because from the testimony of both Mrs. Ashley and her daughter it appears that both testified postively that no announcement or notice of the necessity for an change of cars at Union Springs was made or given; and the facet that at other times their testimony in this regard was negative, as indicated, did not eliminate the positive statements alluded to. The bill itself refutes the last insistence.
We are of the opinion that the allegation of the character of the motive power — steam— was wholly immaterial and unnecessary to be proven in this action, based, as it is, on alleged negligence entirely foreign to what means of power were employed to drive the train on which plaintiff was a passenger of the defendant, a common carrier.
On the question of asserted excessiveness of the verdict, we are not so convinced of its unreasonableness as to warrant us in reversing the trial court. There was evidence before the jury tending to show illness suffered by plaintiff as a result of the negligence charged, and also annoyance, anxiety, and some financial expense en
The judgment must be affirmed.