Mobile Light & R. R. v. Walsh, C. , 146 Ala. 295 ( 1906 )

TYSON, J.

The affirmative charge requested by the defendant was properly refused. — Mobile Light & Railroad Co. v. Patrick Walsh, 146 Ala. 290.

While damages are claimed in the complaint for the pain occasioned the plaintiff by the alleged rough operation of the car while, being transported from tin place of her injury to the point where she finally left it, and testimony tending to support tins allegation was offered against the objection of defendant, yet, in view of the statement of plaintiff’s counsel, made to the court and jury, that slu abandoned all claim for such damages, if error was committed by the court in permitting the introduction of this testimonv, it was without injury.— Sou. Ry. Co. v. Bunt, 131 Ala. 591, 32 South. 507; Strawbridge v. Spann, 8 Ala. 820.

The motion to exclude the statement of Mrs. Brown that “her mother (the plaintiff) was unable to attend to her duties- and is still unable to do- anything,” because the witness was not shown to be an expert, was properly overruled. — S. & N. Ala. R. R. Co. v. McLendon, 63 Ala. 266, 276 and cases there cited; L. & N. R. R. Co. v. Stewart, 128 Ala. 313, 29 South. 562.

Objections to the several questions propounded by defendant to its roadmaster, for the purpose of showing that tlieie was at the time, and had been for a. long time, a great number of other places in the streets of the city, over which its track ran, where there was just as great depressions, and even lower than the one where the accident to plaintiff occurred; that those conditions had existed for a number of years, and that passengers, male and female, in great numbers, were constantly in the habit of getting off the cars at such places without injury or difficulty, were properly sustained. The object sought by the questions was to show that the place at which plaintiff was hurt was not dangerous. To permit this character of testimony to he introduced would inject into the case an interminable number of issues upon purely collateral matters and perhaps divert the minds of the jurors from the main issues. — Commander v. State, 60 Ala. 1; McAnally v. State, 74 Ala. 9; Mattison v. State, 55 Ala. 224; Montgomery St. Ry. v. Matthews, 77 Ala. 357, 54 Am. Rep. 60; Association v. Giles, 33 N. J. Law, 260; Branch v. Libbey, 78 Me. 321. 5 Atl. 71, 57 Am. Rep. 810; Langworth v. Green Township, 88 Mich. 207, 50 N. W. 130; Kidder v. Dunstable, 11 Gray (Mass.) 342; 1 Greenleaf on Ev. (16th Ed.) §§ 14a, 52, 448. The cases decided by tills court and relied-upon by appellant as supporting his contention on this point do not go further than to hold that testimony that other persons alighted from defendant’s cars at the place where the injury occurred, if conditions were shown to be the same as when the accident to plaintiff happened, was admissible. — E. Tenn., Va. & Ga. R. R. Co., v. Thompson, 94 Ala. 636, 10 South. 280; Birmingham Ry. & Elec. Co. v. Alexander, 93 Ala. 131, 9 South. 525; Mayor & Aldermen of Birmingham v. Starr, 112 Ala. 98, 20 South. 424; Davis v. Alexander City, 137 Ala. 206, 33 South. 863. We are unwilling to extend the rule declared in those cases to the length we are here asked to go. Indeed, we think they have gone to the full limit— much further than the courts in other states have gone.

Several exceptions were reserved to certain parts of the oral charge of th& court, which is set out in extenso in the record. The first of these relate to the degree of care exacted by the law of street car companies operating their cans by electricity with inspect to their operation and as to places for their passengers to alight. The court instructed the jury that such railroad companies were required to exercise the highest degree of care, both as to the operation of the cars and providing places for the discharge of their passengers from their cans. Such is the law when applied to the facts of this case, as declared by this court in Montgomery St. Ry. v. Mason, 133 Ala. 508, 32 South. 261. See, also, 2 Shearman & Redfield on the Law of Negligence, §§ 495, 509; Nellis on St. Ry. Accident Law, p. 109. For it will scarcely be denied that the stopping of the. car for passengers to alight from it is in a sense providing a place for such passenger to alight.

The next is to this language employed by the court: “When the car is stopped at or near the place when the passenger gives the signal for it to stop, or has directed or requested it to stop — that is, when the car stops just beyond such point a short distance — that may be taken as an invitation to alight.” This seems to announce a correct principle. — Nellis on St. Ry. Accident Law, pp. 110, 111, and note 60 on latter page. But we do.not understand this instruction as is contended, as withdrawing from the jury the question whether on the facts stated there may or may not have been an implied invitation to the passenger to alight. On the contrary, we think it quite clear, under the charge, that the question was left to them for determination. As to the nest portion of the charge excepted to, if conceded to be subject to criticism standing alone, the error, if one, was corrected by what was subsequently said by the court in its oral charge to tie jury, in which it was distinctly and propeily stated that the question whether there was an invitation to alight from the car was. one for the jury.— R. & D. Ry. Co. v. Weemes, 97 Ala. 270, 12 South. 186, and., cases there cited; Winter v. State, 132 Ala. 32, 31 South. 717; Sweeny v. Bienville Water S. Co., 121 Ala. 454, 25 South. 575.

Charges B and C, refused to the defendant, were each properly refused. The first of these was calculated to mislead the jury in the use of the expression contained in it, “that tin defendant did issue such an invitation,” and, besides, it ignored that phase of the testimony from which the jury would have been authorized to find that there was a request by plaintiff to the motor.man to take the car hack to the crossing, and that the request was heard by tire conductor. The last criticism also applies to charge ( '. Other objections to them might be pointed out, but these will suffice.

Charge 5 ignores the principle that plaintiff has a right to rely upon the implied assurance of safety arising out of a.n express or implied invitation to alight, even if doubtful as to such safety, and was justified in alighting if a .person of ordinary care and prudence would have done so under the circumstances.

Charges 6 and K are treated together in brief of appellant’s counsel as asserting' substantially the same principle. We shall not go further than to point out the defect in-the last one designated. It was clearly misleading, in that it assumes that the condition of the track, place of exit, and surrounding circumstances were fully known to the plaintiff, whereas the testimony tends to show that they were not fully known. Besides, the defendant’s servants were charged with the duty of knowing whether the place was reasonably safe, and, if its unsafe condition could have been discovered by them by the exercise of that degree of care required, they must be charged with the knowledge of that condition. No such duty was imposed upon plaintiff, and she could not he held to be guilty of negligence as matter of law, unless the place where she alighted was obviously dangerous. — Nellis on St. Ry. Accident Law, p. 118. This principle is also conclusive against the correctness of charge 7.

Charges 10 and 14, from what we have, said, were each correctly refused.

There was no evidence tending to show that plaintiff’s fall was occasioned by her foot having caught in her skirt. Charge 1) was, there foie, properly refused.

The court cannot he reversed for refusing charge EE. It asserts no principle of law, and must he condemned as being argumentative. If it was the purpose to have the jury instructed that under the evidence the motorman was not guilty of negligence, the proposition' should have been requested in a way to properly raise that question.

Charge F wholly ignores all reference to notice or knowledge on the part of the plaintiff that it was dangerous to alight from the car on the side that she did, instead of the other.

.Charge I co-nfinrs the consideration of the jury to certain facts therein stated, to the exclusion of others shown by the testimony relevant to the issue, and was therefore misleading. Por the same reason charges J and M were properly refused.

The two charges given at plaintiff’s request, assigned as error, each assert correct propositions of law, and there was no error in giving them.

Affirmed.

Weakley, O. J., and Simpson and Anderson, JJ., concur.