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

• Decision Date: 11 June 1914
• Docket Number: 864
• Citation: 187 Ala. 508,65 So. 781
• Court: Alabama Supreme Court
• Parties: GREEN v. BIRMINGHAM RY., LIGHT & POWER CO.

65 So. 781

187 Ala. 508

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

No. 864

Supreme Court of Alabama

June 11, 1914

Rehearing Denied June 30, 1914

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Laura L. Green against the Birmingham Railway, Light &amp Power Company. From a judgment for defendant, plaintiff appeals. Affirmed.

William Vaughan and W.H. Smith, both of Birmingham, for appellant.

Tillman Bradley & Morrow, L.C. Leadbeater, and P.P. Waldrop, all of Birmingham, for appellee.

MAYFIELD J.

This was an action by a female passenger, against a carrier. The wrong alleged was that the carrier's agent negligently stepped upon the plaintiff's skirts, as she was alighting from the car, and caused her to fall. The trial resulted in a verdict and judgment for defendant, from which judgment plaintiff prosecutes this appeal.

Appellant assigns three errors: The several and separate giving at the request of defendant, of three charges, G, H, and J. These charges were as follows:

"G. I charge you that the burden of proof in this case is on the plaintiff, and, unless you are reasonably satisfied from the evidence by a preponderance of the evidence that the plaintiff is entitled to recover you must find for the defendant.

"H. If after considering all the evidence your minds are left in a state of reasonable uncertainty as to whether plaintiff is entitled to recover, your verdict must be for the defendant."

"J. Even if the conductor stepped on plaintiff's dress, this would not entitle plaintiff to recover, unless he acted in a negligent manner in stepping on the dress."

No insistence is made as to charge J, and therefore we will not treat it.

Charges G and H were each proper, as applied to the issues and the evidence in this case. Some charges, very similar to G and H were held bad in Hobbs' Case, 151 Ala. 335, 43 So. 844 in Carter v. Fulgham, 134 Ala. 238, 32 So. 684, and in Arndt v. Cullman, 132 Ala. 540, 31 So. 478, 90 Am.St.Rep. 922, but the charges in those cases are distinguishable from the charges in this case, nor do we think those cases hold that the giving of charges like the two here in question would be reversible error, though there may be decisions to the effect that it would not be error to refuse them. Charges like the two in question were declared and held good in the cases of Behrman v. Newton, 103 Ala. 525, 15 So. 838; O'Connor v. Dickson, 112 Ala. 304, 20 So. 413. These cases have been criticised, however, and have probably been modified to the effect that it is not error to refuse such charges. In the case of B.R., L. & P. Co. v. Martin, 148 Ala. 8, 42 So. 618, it is said, in speaking of two charges somewhat similar to the ones in question:

"Charges 4 and 15 were properly refused because they required the jury to be reasonably satisfied by 'a preponderance of the evidence.' While it has been held not an error to give such a charge (O'Connor Mining & Mfg. Co. v. Dickson, 112 Ala. 304, 20 So. 413; Behrman v. Newton, 103 Ala. 525, 15 So. 838), the later decisions expressly hold that similar charges are misleading, and may be refused (Callaway v. Gay, 143 Ala. 524, 39 So. 277, and cases there cited.) In Carter v. Fulgham, 134 Ala. 238, 32 So. 684, a like charge was said to impose upon a plaintiff too high a duty."

The charge condemned in the case of Carter v. Fulgham, supra was, as stated in the opinion in that case, bad for other reasons than that of imposing too great a burden of proof, and is therefore only as to dicta conflicting with the...