Birmingham Railway, Light & Power Co. v. Mindler , 3 Ala. App. 444 ( 1911 )

WALKER, P. J.

The second and third pleas each detailed the conduct of the plaintiff: in attempting to alight from the moving car which was relied on to sustain the conclusion therein averred that she was guilty of negligence which proximately contributed to the injury complained of. Looking to the averment of facts, and not alone to the conclusion of the pleader deduced therefrom, the court is of the opinion that each of those pleas disclosed a state of facts to which the law attaches the conclusion, expressed by the pleader, that the plaintiff was guilty of negligence proximately contributing to her injury, and that neither of them was subject to demurrer on any of the grounds assigned.—Osborne, Adm’x, v. Alabama Steel & Wire Co., 135 Ala. 571, 33 South. 687. The averments of each of those pleas show that in the plaintiff’s attempt to alight from a moving car there was an absence of such care, prudence or forethought on her part as, in' the circumstances stated, such a venture reasonably called for, and that this failure of duty on the part of the plaintiff was a contributing cause of the result complained of.—Watkins v. Birmingham Railway & Electric Co., 120 Ala. 147, 24 South. 392, 43 L. R. A. 297; Hunter v. L. & N. R. R. Co., 150 Ala. 594, 43 South. 802; Nashville, C. & St. L. Ry. v. Casey, 1 Ala. App. 344, 56 South. 28. It may be remarked that the evidence- on the trial — both that offered by the plaintiff and that offered by the defendant —rdid not indicate that the incident complained of occurred under such circumstances that the defense set up in these two pleas would have been available to the defendant if the demurrers to them had been overruled. If the record disclosed no other ground for reversing the judgment, it might be a question whether the court could be justified, in such a situation, in treating the action of the court in sustaining the demurrers to the pleas as error without injury, or would have to indulge the presumption that the defendant might have disclosed the occurrence under a very different aspect, if it had no.t, by the act of the court in sustaining the demurrers to the pleas, been denied the opportunity of attempting to sustain them by evidence. But the question suggested is not material, as the record discloses other error requiring a reversal of the judgment appealed from.

In a part of its oral charge to which an exception was reserved the court instructed the jury in effect that if they believed from the evidence that the defendant recklessly or carelessly injured the plaintiff, then they could take into consideration the wanton count of the complaint, and give the plaintiff punitive damages. Under this instruction Na count alleging wanton or willful misconduct could be sustained by evidence showing no more than mere carelessness — simple negligence, and punitive damages could be awarded for such negligence. Under the authorities it cannot be doubted that such an instruction was materially erroneous.—Kansas City, Memphis & Birmingham R. Co. v. Crocker, 95 Ala. 412, 11 South. 262; Southern Railway Co. v. Bush, 122 Ala. 470, 26 South. 168; Birmingham Ry. L. & P. Co. v. Wise, 149 Ala. 492, 42 South. 821; Montgomery Street Railway v. Rice, 142 Ala. 674, 38 South. 857.

Oth'er rulings assigned as errors need not be passed on, as the questions involved may not be presented on another trial.

Reversed and remanded.