72 So. 343 | Ala. | 1916
This action was considered here on a former appeal. — 185 Ala. 617, 64 South. 343. After the appeal the plaintiff (Mrs. O’Brien) died, and the suit was revived in the name of her personal representative, her daughter. Mrs. O’Brien bore the relation of passenger to the defendant as a carrier when she became entangled in a wire attached to the rear of the street car from which she had just alighted at her destination. — 185 Ala. 621, 64 South. 343. One of the issues involved in the previous trial, and in the subsequent review here, was whether the operatives of the car exercised due care and diligence to avert injury to her after they became aware of her peril from being dragged by the wire attached to the car. It was then said: “There was evidence tending to show want of due promptness or care by each of them [operatives] in bringing the car to a stop after plaintiff’s peril was known.”
The like issue was of the issues involved on the last trial below. ■
Our opinion is that this instruction invaded the province of the jury, taking from the jury the plaintiff’s right, created of the evidence, to have the jury determine the stated controverted issue of subsequent negligence vel non on the part of the conductor and motorman, or of either, after he or they became aware of plaintiff’s perilous situation behind the running car. According to the terms of the charge, the unqualified right of the operatives to propel the car forward was avowed, entirely omitting to qualify that right by appropriate reference to the condition of peril made by her situation at the time. It is not reasonably possible to only attribute to the instruction the less grave effect of a tendency to mislead, thereby imposing on the plaintiff the obligation to request explanatory instructions.
Reversed and remanded.