Birmingham Railway, Right & Power Co. v. Yates , 169 Ala. 381 ( 1910 )

MAYFIELD, J.

Appellee sued appellant to recover damages for personal injuries sustained through being thrown from one of appellant’s electric street cars while he was a passenger thereon. The negligence alleged is that, the conductor ordered plaintiff from a safe place on the car to an unsafe place, and in that, while plaintiff was passing from one place to the other or while in the latter place, the appellant, “by and through its servant or agent” in charge of said train (alleged to have been tbe conductor), negligently increased tbe speed of the train, or caused the same to make a sudden and severe jerk or motion.

It is insisted by appellant that its demurrer should have been sustained to the second count of the complaint, for that said count failed to properly allege or to show that appellant was guilty of any actional negligence in causing the sudden jerk or lurch of the train/ that the latter alternative as to the jerk or lurch of the car is insufficient, and therefore renders the whole count-bad. We cannot agree to this conclusion. It is the duty of a common carrier to exercise a very high degree of care and caution, to the end of so operating their cars or carriages that injuries to passengers from sudden jerks, jars, or lurches, may be avoided. — Hutchinson on Carriers, § 924.

Count 2 alleged the relation of carrier and passenger, and sufficiently showed a breach of the duty owed by the former to the latter, and injury in consequence thereof; and was therefore sufficient. The count is distinguishable from the counts considered in the cases of Mobile Co. v. Bell, 153 Ala. 90, 45 South. 56; Birmingham Co. v. Parker, 156 Ala. 251, 47 South. 138, and Birmingham Co. v. Weathers, 164 Ala. 23, 51 South. 303. The count was sufficient under the rules announced in the cases of Central of Georgia Railway Co. v. Freeman, 134 Ala. 354, 32 South. 778 and Highland Co. v. Miller, 120 Ala. 543, 24 South. 955.

Plea 7 set up a good defense to the entire complaint and to each count thereof. It set up or alleged facts which, if true, affirmatively showed that plaintiff was guilty of contributory negligence, and that such negligence proximately contributed to liis injury. It was not subject to any of the grounds of demurrer interposed, and the court erred in sustaining the demurrer thereto. It was not necessary for it to deny the negligence alleged in the complaint, as is insisted by appellee; because it was a plea of contributory negligence, which may be sufficient though it expressly admit the negligence alleged, if it sufficiently shows that plaintiff was also guilty of contributory negligence, and that his own negligence proximately contributed to his injury. A plea of contributory negligence usually admits that the defendant was negligent, otherwise, there is no necessity for pleading it. If defendant was not guilty of negligence there was no necessity or occasion to plead contributory negligence. Nor does the fact that the plea or some part of it may, directly or inferentially, deny or fail to deny some part of the complaint, make it bad, if it otherwise sets up facts and matters which are of themselves a complete defense to the action. The plea clearly imputes to plaintiff a negligent and dangerous act, which is alleged to have proximately contributed to his injury. The plea does not have to depend upon the word “negligent” for its sufficiency; the acts alleged were, in themselves, both negligent and dangerous, or, to speak more accurately, were negligent because they were dangerous. The plea also alleges that plaintiff was aware of the danger, and that his acts were highly and obviously dangerous, and that it was manifest that his acts alleged would probably cause'him to fall.

The court also erred in refusing charge 8, which was as follows: “If you believe from the evidence that the speed of the car was suddenly increased, or the car was suddenly jerked or moved by the motorman of the car without any signal or co-operation by the conductor, then you cannot find for the plaintiff under the second count of the complaint.”

The second count relied solely upon the negligence of the conductor, and it is alleged that he caused the sud•den jerk or jar or fast speed of the car, which caused ihe injury; and if the evidence failed to show that he was guilty of the negligence alleged in and by the count, of course a verdict for plaintiff, under that count, should not have been returned. This was the substance and effect of the charge. The count alleged negligence of the conductor as the cause of the injury, and of course the proof must correspond with the allegation. It was not sufficient to show negligence of the motorman alone, because there was no allegation in count 2 to support such proof. We do not mean to say that the proof showed negligence on the part of the motorman, but that even it it did the charge was proper, as it was likewise whether the evidence did or did not tend to show negligence on the part of the conductor. The charge properly submitted that question to the jury.

We do not think that count 2 is susceptible of the construction that it alleged negligence as to any one except the conductor, as is alleged by appellee. It ascribed the negligence, both in giving the order and in the movement of the car, to the conductor and to him alone.

Charges 6 and 7 were properly refused, because argumentative, if for no other reason.

Reversed and remanded.

Dowdell, C. J., and Simpson and McClellan, JJ., •concur.