Birmingham Ry., Light & Power Co. v. Gonzalez

• Court: Alabama Supreme Court
• Writing for the Court: SOMERVILLE, J.
• Citation: Birmingham Ry., Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80 (Ala. 1912)
• Decision Date: 17 December 1912
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. GONZALEZ.

61 So. 80

183 Ala. 273

BIRMINGHAM RY., LIGHT & POWER CO. v. GONZALEZ.

Supreme Court of Alabama

December 17, 1912

On Rehearing, February 13, 1913

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Action by Mrs. Mary H. Gonzalez against the Birmingham Railway Light & Power Company. From the judgment, defendant appeals. Affirmed on rehearing.

Tillman Bradley & Morrow and L.C. Leadbeater, all of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

SOMERVILLE J.

The first count of the complaint alleges that plaintiff was a passenger on one of defendant's cars, her destination being Sixth avenue and Twenty-Third Street North, in Birmingham; and that "while plaintiff was in the act of alighting or disembarking from said car it started forward with a sudden, violent jerk, throwing her with great force and violence down to and upon the floor of the car, injuring her," etc. The concluding averment is "that her said injuries were proximately caused by the negligence of the defendant in the negligent manner in which it ran or operated its said car."

Defendant demurred to this count, on the grounds, substantially, that it does not show that plaintiff was alighting at a proper time or proper place, and hence does not show that the sudden start and jerk was a violation of any duty owed to plaintiff by defendant.

On the authority of B.R., L. & P. Co. v. Haggard, 155 Ala 343, 46 So. 519, L. & N.R.R. Co. v. Church, 155 Ala. 329, 46 So. 457, 130 Am.St.Rep. 29, B.R., L. & P. Co. v. Oden, 164 Ala. 1, 57 So. 240, B.R., L. & P. Co. v. Jordan, 170 Ala. 535, 54 So. 280, B.R., L. & P. Co. v. Fisher, 173 Ala. 623, 55 So. 995, this count must be held sufficient as against the demurrer; and its overruling by the trial court was therefore free from error.

We have, in this connection, considered the rulings found in B.R., L. & P. Co. v. Parker, 156 Ala. 251, 47 So. 138, and B.R., L. & P. Co. v. Weathers, 164 Ala. 23, 51 So. 303. In those cases, as in the present case, the complaint stated the mode of the injury by a recital of facts which, standing alone, were not sufficient to show negligence on the part of the carrier; and, as in the present case, it also concluded with a general charge that plaintiff's resulting injury was proximately due to defendant's negligence in carrying plaintiff as its passenger. But in those cases the complaint went further and qualified its general averment of negligence by the addition of the phrase "as aforesaid," which was held to mean "that the facts already alleged in its forepart constitute negligence, and by reason and as a consequence of them, and nothing besides, plaintiff suffered his injuries." Hence the demurrers for insufficiency of averment were there sustained.

Those rulings thus predicated are not applicable to the present complaint.

Demurrers were sustained to defendant's pleas 5 and 7, which charge plaintiff with contributory negligence proximately causative of her injuries. Plea 5 alleges that "while plaintiff was going from her seat to the door of said car said car was in motion, and that it was plaintiff's duty to exercise reasonable care to support herself, but that plaintiff negligently failed to exercise such reasonable care to support herself," etc. Plea 7 alleges that "plaintiff while standing in the aisle, or upon the platform of said car, while said car was in motion, negligently failed to properly support and maintain herself in such a standing position, whereby," etc. The demurrers attack these pleas on the ground of the insufficiency of their averment of the facts relied upon as constituting and showing contributory negligence.

It is the settled rule in this state that in such pleas facts must be alleged--facts which are sufficient, in themselves, to show plaintiff's negligence as a conclusion of law, or to reasonably suggest it as an inference of fact. In the latter case, the facts being proved, negligence vel non is a question of inferential fact for the jury; and, the facts being consistent with a negative inference, it is essential that the plea should color the equivocal facts by supplying the conclusion that plaintiff's conduct was negligent. Pace v. L. & N.R.R. Co., 166 Ala. 519, 52 So. 52, 54. Where plaintiff's conduct is not per se negligent, but may be so by reason of attending circumstances, these circumstances must be shown by appropriate averment, as far as is reasonably practicable, though, brevity being the soul of good pleading, shorthand statements may often suffice, when their ultimate constituents would be tedious or difficult of rehearsal.

The pleas in question tacitly admit that plaintiff was injured, while in the act of alighting from the car, as the result of being thrown from her feet onto the floor by reason of the car starting forward with a sudden, violent jerk. Their language is reasonably susceptible of two applications: (1) To the failure of plaintiff to make proper and adequate use of her legs and feet for the support of her body; or (2) to her failure to make use of such external supports as common knowledge teaches us the structure of the car might offer to either hands or feet--in both cases without due regard to the natural impairment of her equipoise while walking or standing on a moving car.

So far as the first alternative is concerned, we think the pleas sufficiently show the duty of plaintiff and its negligent omission by her, as contributory to her injury. But, with respect to the second alternative, we think it is deficient in omitting any averment of facts which might reasonably impose upon a debarking passenger the duty of taking the extraordinary precautions hypothesized--such facts, for example, as the age or physical infirmity of the passenger, the incumbrances carried by her, the speed of the car, and the consequent insecurity of the balance or footing of the passenger while standing on her feet preparatory to leaving the car, having in view its ordinary and proper movements. We therefore hold that the demurrers on this ground were well taken and properly sustained to pleas 5 and 7.

We note, in passing, that, while a plea substantially like these was interposed in B.R., L. & P. Co. v. Selhorst, 165 Ala. 475, 51 So. 569, its sufficiency in these aspects was not determined.

The trial court refused to give this charge, as requested in writing by the defendant: "If you believe from the evidence that plaintiff walked down the aisle when the car was in motion, then I charge you that plaintiff assumed the risk of all proper and ordinary movements of the car." This charge, it seems, states a correct proposition of law. B.R., L. & P. Co. v. James, 121 Ala. 120, 123, 25 So. 847; L. & N.R.R. Co. v. Smith, 129 Ala. 561, 30 So. 571. It must, however be pronounced abstract and properly refused in the present case, in view of the absence of any evidence tending to show that plaintiff was injured while walking down the aisle of the car while it was in motion, or by reason of thus walking; for all the testimony shows that she was standing at the back of the car at the time she lost her balance and fell.

The trial court refused also the following charge, requested in writing by the defendant: "If, after a full and careful consideration of all the evidence, any individual juror is not reasonably satisfied from the evidence that plaintiff was negligently or wantonly or willfully injured, then you cannot find for the plaintiff." If the question were before us for the first time, the writer would be much inclined to approve the dissenting views of Denson, J. (concurred in by Weakley, C.J.), in the case of B.R., L. & P. Co. v. Moore, 148 Ala. 115, 131, 42 So. 1024, where a substantially similar charge was held to have been improperly refused; but this identical charge has been recently approved, and we adhere to that ruling. B.R., L. & P. Co. v. Humphries, 171 Ala. 291, 54 So. 613, where the cases are cited and discussed. It is to be observed, however, (1) that this charge in terms submits to the jury, not only the issue of defendant's simple negligence, but also the issues of willful and wanton injury; (2) that there was never any complaint of willful injury; and (3) that the counts for wanton negligence were eliminated from consideration by the following language in the oral charge of the court: "At the request of the defendant, in writing, I charge out these [[[wanton] counts, and they are not before you for consideration; only the counts that charge simple negligence on the part of defendant are up for consideration." Then proceeds the record, "At the conclusion of the oral charge of the court, the defendant requested the court, separately and severally, in writing, to give the jury each of the following charges," among others, the charge in question. It is thus apparent that the trial court could not have given this charge as to the issues of willful and wanton injury without self-contradiction, and, indeed, self-stultification, superinduced by defendant. And it seems clear that the trial court cannot be put in error for refusing the charge as framed.

The trial court overruled defendant's objections to the following statements made by plaintiff's counsel in his closing argument to the jury: (1) "Millions of nickels and dimes go into the coffers of the company and to the stockholders." (2) "We give them valuable franchises." (3) "Why didn't they put on their corps of men that hang around the court?" It is earnestly argued that permitting these statements to go to the jury was reversible error; and that by reason of their prejudicial character they presumptively influenced the verdict adversely to defendant in such degree as to entitle defendant to a new trial, for which it duly but unsuccessfully...