Van Tinder v. Birmingham Ry., Light & Power Co.
| Decision Date | 16 January 1919 |
| Docket Number | 6 Div. 730 |
| Parties | VAN TINDER v. BIRMINGHAM RY., LIGHT & POWER CO. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.
Action by Ruth Van Tinder against the Birmingham Railway, Light & Power Company for damages sustained while a passenger on one of its cars. Judgment for defendant, and plaintiff appeals. Affirmed.
The following charges were given for the defendant:
(1) If you are reasonably satisfied from the evidence that the plaintiff had curvature of the spine prior to the alleged accident, then you cannot award her any damages for such spinal condition existing prior to the accident.
(2) The fact, if it be a fact, that plaintiff was injured while alighting from said car, does not in and of itself make out plaintiff's case or entitle her to recover a verdict against this defendant.
(3) If you are reasonably satisfied from the evidence that plaintiff negligently alighted from said car while it was in motion coming to a stop for her to alight, and that as a proximate consequence of her alighting from said car she received her said alleged injuries, you cannot find a verdict for plaintiff.
(4) If you are reasonably satisfied from the evidence that at the time and immediately prior to the accident the said car was being carefully and properly operated, and that it was in motion coming to a stop for plaintiff to alight from, and that while so in motion the plaintiff alighted, thereby approximately receiving her alleged injuries, then you cannot find verdict for plaintiff.
W.A Denson, of Birmingham, for appellant.
Tillman Bradley & Morrow and Charles E. Rice, all of Birmingham, for appellee.
The trial court committed no reversible error in giving for the defendant charge marked 1, page 9 of the record. It merely excluded a recovery of damages for the condition of the plaintiff's spine not caused by the defendant. If it was misleading, it could have been explained by a countercharge. Moreover, if a bad charge, the giving of same was error without injury, as will be demonstrated in discussing the motion for a new trial.
Charge 2, given for defendant, could have probably been refused as argumentative, but it asserted a truism, and the giving of same was not reversible error.
Charge 3, given for defendant, whether good or bad, was justified under the evidence and defendant's special plea 2, which was unchallenged by the plaintiff, and said charge practically tracks the plea.
Charge 4, given for defendant, did not attempt to invoke contributory negligence, but merely presented and hypothesized the defendant's theory as shown by its evidence. Tannehill v. Birmingham Ry. Co., 177 Ala 297, 58 So. 198. The plaintiff charged in her complaint that she was injured at a regular place for passengers to get off, and her proof shows that while in the act of getting off the car at a regular stopping place, after the car came to a stop, it was started forward, thereby jerking or throwing her to the ground. The defendant's evidence contradicted this, and showed that the plaintiff alighted from the car while in motion and before it reached her stopping place, and that at the time the said car was being carefully and properly operated. The case of Sweet v. Birmingham Ry. & Elec. Co., 136 Ala. 166, 33 So. 886, has no bearing upon this case. The court simply held in that case that, notwithstanding the car did not actually stop, if it was going so slow as to indicate an invitation to alight, it would be negligence to increase the speed without ascertaining that no one was acting upon the invitation. Here this question is not involved, as the plaintiff claims that the car had stopped and then suddenly started before she alighted, and, of course, if this was true, there was negligence on the part of the defendant's servants; but the defendant's evidence disputed this, and claims that the car was coming to a stop and the plaintiff stepped off before it had stopped, and the charge merely hypothesizes the defendant's theory and a proper operation of the car at the time of and immediately preceding the injury.
The plaintiff made a motion for a new trial upon several grounds but the one now urged is because of newly discovered evidence resulting from an X-ray...
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