Anniston Electric & Gas Co. v. Anderson , 11 Ala. App. 554 ( 1914 )

PER CURIAM.

This was an action by the appellee to recover damages for personal injuries claimed to have been sustained in consequence of the alleged failure of the conductor of the appellant’s street car to put appellee off at Cooper’s Crossing, a regular stopping place, at which he had notified the conductor that he wanted to get off. In three of the counts of the complaint such failure was charged to have been negligent, and the other count charged that it was willful or wanton. Two of the counts contained averments as to the failure of the conductor to call out said stopping place or otherwise notify plaintiff of having reached it.

The only evidence introduced in behalf of the plaintiff was his own testimony. He testified that at the time of the incident complained of he had been living for more than a month in a house on Constantine avenue, in going to which from his place of business he rode on the defendant’s street car to Cooper’s Crossing, got off there, and walked to Constantine avenue, which was some distance from the car track; that he was familiar with Cooper’s Crossing, and knew all the ground around there; that on the occasion in question he boarded the defendant’s car to go- to his home, and said to the conductor when he paid his fare, “Cooper’s Crossing please”; that when the car approached that place he was sitting at the window, looking out for the crossing, saw it when the car reached and passed it without stopping, and when this occurred he got up and told the conductor that he wanted to get off there, but the car proceeded to the nest regular stopping place, Constantine Station, where he was let off; that he was unfamiliar with the path leading from that station to Constantine avenue, and was hurt by falling into a trestle in an attempt to walk in the dark along the street car track back to Cooper’s Crossing. He stated that the conductor did not call out Cooper’s Crossing that evening. ’ This statement was not controverted; but three witnesses for the defendant testified that the car stopped at that place on that trip, and that a passenger, who was one of these witnesses, board the car when it stopped there. The plaintiff’s testimony did not indicate the existence of a. claim on his part that his failure to be let off at his destination was at all due to al failure of the conductor to announce that place. It showed that he was familiar with the locality, was on the lookout for the crossing as the car approached it, and knew when it was reached and when the car passed it without stopping. It cannot be inferred from his testimony that his expression, “Cooper’s Crossing, please,” was intended by him or was understood by the conduct- or as a request to be notified when the car approached or reached the place mentioned, or that it imported anything but a request that the car be stopped there to enable a passenger to get off. Even if there was support for an inference that an announcement of the stopping place by the conductor was to be expected, it is apparent that the tendency of the plaintiff’s testimony was to prove that it was solely the failure to stop the car at his known destination which deprived him of the opportunity of getting off there, with the result that, in his attempt to get back to that place from the station beyond it at which he was let off, he sustained the injury complained of. This testimony negatived the conclusion that a failure to give notice of the car’s approach to or arrival at his destination was, in whole or in part, the cause of his being carried beyond it. According to his own version of the occurrence, his failure to get off at Cooper’s Crossing was due Avholly to the fact that the car did not stop there, and not at all to his not knoAVing AAdien it got there, or to his not being ready to get off there if the opportunity to do so had been afforded. None of the evidence adduced furnished a support for an inference or conclusion that the result of Avhich the plaintiff complained Avas attributable, in Avhole or in part, to a failure to give him notice of a fact of Avhich his own testimony shows that he was fully awai’e.

The evidence raised the issue as to whether there was a failure to stop the car at the plaintiff’s destination, with the result that he was not enabled to get off there. It raised no issue as to that result being wholly or partially due to the plaintiff’s lack of notice or knowledge of the car’s approach to or arrival at that place. Assuming that the conductor’s failure to announce the station was a breach of duty owing by him to a passenger, yet that breach of duty is not an element of the cause of action which there was evidence tending to prove accrued to the plaintiff, as whatever harm was suffered by him was due to something other than a lack of notice of a fact of which he was as fully aware as he would have been if another had mentioned or stated it to him. A default of the defendant which did not at all contribute to the result of which the plaintiff complains is not a proper matter for consideration on the inquiry as to the latter’s right to recover. Though such default was averred in the complaint, it was eliminated as a feature of the plaintiff’s claim when the undisputed evidence adduced in the trial showed that it did not at all contribute to the result complained of. The fact that an issue is raised by the pleadings in the case does not justify the court in submitting it to the jury when it is not raised by the evidence adduced in the trial. — Central of Georgia Railway Co. v. McNab, 150 Ala. 332, 43 South. 222; Williamson v. Green, 4 Ala. App. 645, 58 South. 974; 38 Cyc. 1617. Though two of the counts of the complaint may be understood as assigning the conductor’s failure to announce the station as a cause of the plaintiff’s alleged deprivation of the opportunity of getting off there, and though there was evidence of such failure on the part of the conduct- or, yet there was no warrant for the giving of instructions under which the jury were at liberty to consider that omission of the conductor as a cause contributing to the result complained of, as no phase of the evidence tended to prove that the failure of another to announce tlie station had anything to do with the plaintiff’s being carried beyond it. The court made rulings which were not in conformity with the views above expressed. The jury might well have inferred from the part of the oral charge to which an exception was reserved that they could render a verdict for the plaintiff if they found from the evidence that the conductor did not notify him when the car reached Cooper’s Crossing, though they found from the evidence that it stopped there long enough to enable him to get off. The defendant was entitled to require the court to give in charge to the jury the proposition stated in its written charges 10 and 12, as no phase of the evidence tended to prove that the carrying of the plaintiff beyond the place at which he wished to be let off, or the injury claimed to have been a consequence thereof, was attributable to any default for which the defendant was responsible other than a failure to stop the car there long enough to afford a passenger a reasonable opportunity to get off. The defendant was entitled to have the issues of fact which were submitted to the jury confined to those which were raised by the evidence. By the rulings above mentioned, it was improperly deprived of its rights in this regard.

Reversed and remanded.

Note. — The foregoing opinion was prepared by Presiding Judge Walker before his retirement from the Court of Appeals, and has been adopted by the court.