67 So. 278 | Ala. | 1914
This case was tried upon the fifth, seventh, eighth, ninth, and tenth counts of the complaint. The trial court overruled the defendant’s demurrers to the ninth and tenth counts of the complaint, and the action of the trial court in so ruling is here appropriately assigned and pressed upon us as error. The reporter will therefore set out the ninth and tenth counts of the complaint.
It is not uncommon, when open cars are used by street car companies, and large crowds are being handled, to see the interior of a street car crowded with passengers, and to also see passengers standing upon the foot boards and steps of the cars. Such conditions, when they are permitted to exist, impose upon those in charge of such a street car a duty of care with reference to their passengers, proportioned to the risk which is caused to the passengers by such overcrowding. — A. G. S. R. R. Co. v. Gilbert, supra.
The ninth and tenth counts of the complaint were not subject to the defendant’s demurrer.
2. While testifying as a witness on behalf of the defendant, the conductor of the car, from which the plaintiff fell and received his injuries, testified as follows: “I had complete control of the management and operation of the car. * * * It was the duty of the motorman to stop when I rang the bell, to start when I told him to start, and to slow down or go fast as I instructed him.”
In addition to the above testimony of the conductor as to his authority over the car, the jury, out of the conflicting evidence, had the right to find (and we presume did in fact find) that the plaintiff, at the time he
This portion of the oral charge of the court must be read in connection with the following other portion of that charge which immediately succeeds it: “If you are reasonably satisfied from the evidence that, at and before the time, the plaintiff claims to have been injured, it was the established general usage and practice of the defendant, in the operation of its cars, to carry large numbers of passengers on its cars in excess of
When the oral charge of the court, which we have above quoted, is read in connection with all of the undisputed evidence in this case, we think that it correct-' ly states the law. In fact, we take it, from a careful examination of this record, that the plaintiff was, at the time of his injury, a passenger, unless he was, in accordance with the theory of the defendant, simply stealing a ride for a few blocks. It seems from the evidence that it was the custom of the defendant to collect fares, not when passengers boarded its cars, but at the convenience of the conductor, after they had been boarded by the passengers. It also appears that but little, if any, attention was paid by the defendant, in the matter of handling its passengers, to the mere seating capacity of its cars. The conductor of this particular car testified that on the named occasion he had about 75 passengers on the car; that the car would carry 125 or 130 passengers at a time; that he had carried that many at times; and that the car would seat only forty-eight people. There was evidence, contradictory of that of the conductor, tending to show that on this occasion the car had on it all of the people who could get upon it; that it was bringing a crowd from a baseball game; and we think that undoubtedly,
Under the authority of Louisville & Nashville, Railroad Co. v. Glascow, 179 Ala. 251, 60 South. 103, and Birmingham Railway, Light & Power Co. v. Barrett, 179 Ala. 274, 60 South. 263, and Southern Railway Co. v. Cunningham, 152 Ala. 147, 44 South. 658, the above charge states a correct proposition of law. .
Referring to a charge in substantially the same language as that of the above charge, this court, in Birmingham Railway, Light & Power Co. v. Barrett, supra, said: “The second written charge given for plaintiff required a verdict for her if the jury found that The material averments’ of the first count were true, and that she was not guilty of contributory negligence. If this charge had any tendency to mislead the jury as to the proof of plaintiff’s case, the defendant should have requested an explanatory charge.”
An examination of the case of Birmingham Railway, Light & Power Co. v. Barrett, supra, will show that the questions determined in that case received, in the original opinion and in the opinion which was wrt-ten in response to the application for a rehearing, the most careful consideration of all of the members of this court. Upon the authority of that case, the trial court in this case cannot be put in error for giving the above-quoted charge to the jury.
There was evidence tending to show that the general custom of the defendant was as the above charge hypothesizes it to have been, and that this custom was known to the conductor and the motorman in charge of this particular car. We do' not see how it is possible for a motorman in charge of a street car, which is so crowded with passengers as to require some of the passengers to stand upon the steps of the car, not to be apprised of that fact; and, when a car is in such condition, it is the duty of both the conductor and the motorman to so operate the car as to meet the increased responsibilities which are thus placed upon them.— A. G. S. R. R. Co. v. Gilbert, supra; B. R., L. & P. Co. v. Jung, supra.
The trial court committed no error in giving the above ' charge to the jury. It correctly states the law as applicable to some of the tendencies of the evidence in this case.
The above charge may have possessed a misleading tendency in that it might have been construed as meaning that the defendant company was under the duty, under the facts hypothesized in the charge, of preventing injury to passengers under any and all circumstances. If so, this misleading tendency could have been avoided by a countercharge, which the defendant does not appear to have asked. The court cannot be put in error for having given it. — A. G. S. R. R. Co. v. Gilbert, supra; B. R., L. & P. Co. v. Jung, supra,.
The trial court cannot be put in error for giving charge A to the jury, at the written request of the plaintiff. If it possessed a misleading tendency, that tendency could have, if the defendant had requested it, been corrected by a countercharge.
This charge, must, of course, be considered as a whole If the italicized part of it was considered alone, manifestly, it would, under the evidence, have amounted to the general affirmative charge in favor of the plaintiff. No such purpose was entertained by the court, as the entire proceedings on the trial demonstrate. When, as
11. In the above opinion we have discussed those questions which, after a careful examination of the record, seem to deserve attention at our hands. To some of the questions discussed in briefs of counsel we have not referred, hut we have carefully considered all of them, and we find that the trial court committed, as to them, no reversible error. This case was, under the pleadings and the evidence, one for the jury. The jury determined the issues in favor of the plaintiff; and, as we find no reversible error in the record, the judgment of the trial court must be affirmed.
Affirmed.