| Ala. | Nov 15, 1894
Plaintiff’s demurrer to the 4th plea, which was overruled, is not set out in the record, and we can not pass upon it. We remark, however, that we can see no objection whatever to the plea.
. We are of opinion the facts hypothesized in the first and second charges requested by the plaintiff constituted negligence on the part of the defendant, and excluded contributory negligence on the part of Ihe plaintiff. These charges ought, therefore, to have been given.
Charges 3 and 4 requested by plaintiff iucorrectly define the character of negligence which will overcome contributory negligence, as we have many times decided ; and besides the plaintiff has not alleged wanton, reckless or intentional negligence. We have held that this character of negligence must be' alleged as well as proven in order to overcome contributory negligence. — Markee v. L. & N. R. R. Co., 103 Ala. 160" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-markee-6515680?utm_source=webapp" opinion_id="6515680">103 Ala. 160 and cases cited.
We think plaintiff’s charge 7 comes within the influence of many adjudications of this court defining argumentative instructions, and was properly refused ; but charges 8, 9, and 10 are free from that vice and ought to have been given. The burden was on plaintiff to prove the negligence alleged, and chages 2 and 3 requested by defendant were proper.
Charges 5 and 6 requested by plaintiff assert correct propositions of law if wanton, reckless or intentional negligence on defendant’s part had been alleged; but
It was the duty of Jones, the deceased, riding upon the hand car, to exercise reasonable care for his safety. What was reasonable care was for the jury to determine from all the facts surrounding him at the time. Charge 4 requested by defendant asserts that, if Jones “had been properly grasping the handle of said car (and that he was not properly grasping it) that he would not have fallen therefrom,” then the jury must find for the defendant. We think this is not a fit method of defining to the jury the kind and degree of care which a person injured should have observed for his own safety. What is meant by properly grasping the handle of the car? We readily conceive that a person situated as deceased was may have grasped the handle of the car in an improper manner, so far as an efficient execution of the work he was charged with doing was concerned, yet if grasping the handle was a duty he owed to his own safety, the improper manner, if grasping it as above stated, might have been just as efficacious for his safety as it would have been had he been grasping it in a proper way for the execution of his work. The expression, “properly grasping the handle” is not the correct wav of submitting to the jury the degree of care Jones should have observed. That charge ought, therefore, to have been refused.
We think charge 6 requested by defendant technically asserts a correct proposition of law, in that it asserts that the defendant was entitled to recover if Jones by his failure to use proper precaution for his own personal safety, fell from the car. If he was guilty of that sort of negligence causing him to fall, the defendant, under the pleadings in this case, was-entitled to recover, without regard to the character of its own negligence. We cannot, therefore, say that the giving of the charge was error; but it may have been well refused (and should have been) because of its misleading tendencies in defining the constituents of due care on defendant’s part. Its language would lead to the conclusion that if the usual and customary signal to stop was given, and the brakes of both cars were applied in the usual and customary manner, the defendant was not guilty of any negligence. Whether or not the giving of the signal and ap
We think charges 10 and 11 are technically correct, and it was not error to give them.
For the errors mentioned the judgment is reversed and the cause remanded.
Reversed and remanded.