Birmingham Railway, Light & Power Co. v. Selhorst , 165 Ala. 475 ( 1910 )

ANDERSON, .•

— It is true that count 1 does not aver that the car had come to a stop when the plaintiff attempted to board same, and it may be that the defendant owed no duty to the plaintiff not to jerk the car under the circumstances detailed, unless the servants knew that plaintiff was attempting to get on same; but the averment that they negligently jerked or lurched same would imply notice of the plaintiff’s position. Nor do we think the count bad for failing to aver the relationship of the parties. It may not aver in words that defendant was a public carrier of passengers; but it does aver that it was operating street cars “as a common carrier of passengers for reward,” which in effect avers that it was a public carrier of passengers. The trial court did not err in overruling the demurrer to count 1.

Count A as amended was not subject to the demurrers interposed thereto, which were properly overruled by the trial court.

Count D was not subject to the demurrers interposed to same. — Birmingham R. R. v. Haggard, 155 Ala. 343, 46 South. 519; Armstrong v. Montgomery R. R., 123 Ala. 244, 26 South. 349.

The fourth plea was bad in failing to set ont the constituents of the contributory negligence, as the negligence set up is a mere conclusion of the pleader, and the ■demurrer thereto was properly sustained. — Creola Co. v. Mills, 149 Ala. 474, 42 South. 1019; Osborne v. Steel Co., 135 Ala. 571, 33 South. 687; Birmingham R. R. v. Dickerson, 154 Ala. 523, 45 South. 659.

The fifth plea was one of contributory negligence, and was no answer to amended count A, which charged wantonness.

The evident prima facie purpose of the defendant in attempting to show that the plaintiff had sustained previous injuries on street cars was to prejudice him with the jury with immaterial matter. It is insisted thai appellant had the right to show other injuries as affecting the extent of the injuries sustained in the instant case. There was nothing in the question to indicate that these injuries still affected the physical condition of the defendant, or that the purpose in asking said questions were to reduce the injuries inflicted in the present case. In the absence of some statement of a purpose to show the materiality and relevancy of the evidence sought by these questions, the trial court will not be put in error for sustaining the objection thereto.

There was no merit in the questions as to whether or not the plaintiff on previous occasions rode on the platform.

There was no error in refusing to let plaintiff testify that his little boy knew that he had fallen. — Bailey v. State, 107 Ala. 152, 18 South. 234; Dunn & Lallande Bros. v. Gunn, 149 Ala. 597, 42 South. 686.

The trial court did not err in refusing the general charge, requested by the defendant, as to amended count A. There was evidence from which the jury could infer that the plaintiff was in a perilous position when the car was started. The conductor admitted that he gave the signals for the car to start, and that he saw the plaintiff before he did so, and that the car was started from his signals. He claimed, however, that the plain-, tiff was on the platform when he did so, and was not, therefore, in a perilous position. On the other hand, there was proof that the plaintiff was in the act of getting on the car, and-was not securely on the platform, when the car was started. It was for the jury to determine whether or not the plaintiff was in a perilous position when the conductor signaled the car to start, and whether or-not the conductor knew of the plaintiff’s perilous position when he signaled the car to start. The conductor said that he was not; but there was evidence from which the jury could infer that plaintiff was in a perilous position and that the said conductor knew it when he started the car, or signaled for it to be started.

The judgment of the city court is affirmed.

Affirmed.

McClellan, Mayfield, and Sayre,' JJ., concur.