Birmingham Railway Light & Power Co. v. Harden , 156 Ala. 244 ( 1908 )

McGLELLAN, J.

While the judgment entry is silent in respect of the disposition made of the demurrer to the second count, which imputed wantonness, etc., to servants or agents of the defendant, yet, from the oral charge of the court, copied in the bill of exceptions, it appears that the jury was instructed that the second count had been stricken on demurrer. This excluded the count from the jury’s consideration, and no prejudicial error could have resulted to the appellant. The count was defective as charging wantonness, etc.

The court below, in its oral charge, thus correctly summarized the negligence relied on for a recovery by the plaintiff, who was averred to be a passenger: “In the first count he says he was hurt while in the act of alighting from a car; that while it was standing still it suddenly started and he was thrown down. * * * In the third count he alleges that he was hurt while a passenger, and that by a sudden jerk or jac he was thrown off and hurt.” These counts were not subject to the demurrers. The relation of passenger and carrier being averred, it was not essential that the negligence imputed to the servants or agents of the carrier should be alleged to have been the result of acts within the scope of the duties of the charged -servants or agents. — B. R. & E. Co. v. Mason, 137 Ala. 342, 34 South. 207.

Since it cannot be pronounced negligence in all cases as matter of law for a passenger to step off of a car at right angles therewith, charge 3 was properly refused to defendant. The speed of the running car must materially influence the determination of that inquiry. Ordinarily, if the car is barely moving, yet in motion, the speed thereof, supplying momentum to the passenger’s body, may not he sufficient to overcome the equilibrium of the alighting passenger. If the passenger is feeble, incumbered, or crippled, of course, the resistance to maintain an equilibrium against such momentum would he plainly less, and a fall more probable of result.

Charge 1, declaring that under the evidence in the cause Forshee, the conductor on the trailer, was not gnilty of negligence, was well refused. Forshee testified that he gave the signal to Brooks, conductor on the motor car, -and he in turn gave the motorman a signal, to start. The duty of the defendant to observe the proper .care for the safety of the plaintiff passenger did not wholly devolve on Brooks. Forshee was likewise bound to the observance of that care. It was open to the jury to find, from the evidence, that the -starting of the car, as averred,'was induced by the negligence of Forshee; an inquiry denied if charge 1 had been given.

Charges 4, 6, and 7 were properly refused to the defendant. These charges assume that, as a matter .of law, it is negligence to attempt to alight from a moving car, whereas such is not the case, in the absence of special circumstances. — Hunter v. L. & N. R. R., 150 Ala. 594, 43 South. 802, 9 L. R. A. (N. S.) 848. Besides, the third count predicated a recovery upon a jerk or jar, resulting in the throwing of the plaintiff passenger to the ground, injuring him. These charges utterly pretermit consideration of this issue raised by the pleadings.

Charge 8 was properly refused. If not otherwise bad, it hypothesizes the departure of the plaintiff from the car, whereas, if so, the jerk of the car could not be negligent under such circumstances.

We must reverse the judgment for the refusal of charge 5. In the oral charge of the court the jury was instructed that in “addition to that [other elements of damages, we explain] his disability to earn money and loss of time” were considerable, in arriving at the quantum of the damages, if they found for the plaintiff. In order to warrant a recovery of damages for loss of earning capacity resultant from the injury suffered, some, evidence of the earning capacity before and after the injury must be given the jury.- — 4 Suth. on Damages (3d Ed.) § 1249, and authorities in notes. In other words, some data must be afforded the jury upon which to base a conclusion as to the loss of earning capacity in consequence of the injury. There was an entire absence of such evidence in this case, leaving the inquiry wholly subject to speculation on the part of the jury, and the court should have given the charge mentioned, since it correctly stated that, on the evidence in the case, only nominal damages for the loss of earning capacity were properly recoverable.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.