108 So. 3 | Ala. | 1926
This case was tried upon a complaint containing a single count, and said count charges that plaintiff was injured while upon the premises of defendant, where he was invited and had a right to be. It also describes the nature and cause of the injury, and that it was caused by the negligence of defendant's agents or servants while acting in the line or scope of their employment. It says he was thrown to the ground by becoming entangled with certain rods, wires, or material, and that the agents or servants of the defendant negligently caused him to be thrown to the ground. If he was thrown to the ground by becoming entangled with the rods, wires, or other material, and as the defendant's servants negligently caused him to be thrown to the ground, it must have of necessity been due to the fact that the negligence causing the injury was in placing or permitting the rods and wires to be where the plaintiff became entangled in same and was thrown to the ground. The complaint shows a causal connection between the injury and negligence, and it has been long and repeatedly held that the acts constituting the negligence, the quo modo, need not be set out. L. N. R. R. v. Holland, 51 So. 365,
It was a question for the jury as to whether or not the agents or servants of the defendant were guilty of negligence in causing or permitting the rods and wires to be and remain in dangerous proximity to the track over which cars were frequently passing and upon the steps or platforms of which the trainmen were often engaged in discharging their duty. It was also a question for the jury as to whether or not the plaintiff was *380 guilty of contributory negligence; that is, appreciated the danger of being on the lower step as charged in the special plea. True, there was evidence that the plaintiff was familiar with conditions, and that quite an amount of material had been piled on each side of the track for a considerable time, but, up to the time plaintiff was injured, it may have been a safe distance from the track, and there is proof that the rods and wires with which the plaintiff came in contact were unloaded only the day before, and there was no proof that he knew that this last material had been placed dangerously near the track. The trial court did not therefore err in refusing the general charge requested by the defendant under either aspect of the case.
There was no error in refusing the defendant's requested charge 5. If not otherwise faulty, it placed the duty on plaintiff to have assumed another position on the car without hypothesizing that he knew of the danger of his position or that he knew of a safer one. Charge 3, refused the defendant, if not otherwise bad, pretermits a knowledge or appreciation of the danger by plaintiff as set out in the plea of contributory negligence.
Charge 2, refused the defendant, whether good or bad, was substantially covered by charges given at defendant's request.
The trial court did not err in overruling the motion for a new trial.
The judgment of the circuit court is affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.