Central of Georgia Ry. Co. v. Williams , 17 Ala. App. 259 ( 1919 )

There is no assignment of error questioning any ruling of the court on the demurrers to the complaint, and it is a familiar rule that, in the absence of appropriate and specific grounds of demurrer questioning the sufficiency of the complaint, a ruling of the trial court thereon and proper assignment of error predicated on such ruling, on appeal, the averments of the complaint will be accorded a liberal construction in order to support the judgment. Dothan Chero-Cola Bottling Co. v. Weeks, 80 So. 734;¹ Slight v. Frix, 165 Ala. 230, 51 So. 601. And in so construing the complaint, its averments will not be segregated, but each count will be considered as a whole and its several averments considered together. B. R., L. P. Co. v. Donaldson,14 Ala. App. 160, 68 So. 590; L. N. R. R. Co. v. Smith,163 Ala. 141, 50 So. 241.

When the complaint in this case is so treated, it appears therefrom with sufficient certainty that plaintiff's wife was a passenger on one of defendant's trains, and while the train was standing still at Smith's Station to allow passengers to disembark, and while she was in the act of leaving the train, the train "was suddenly started with a violent and quick jerk, and as a proximate consequence thereof plaintiff's said wife was caused to fall," and when considered in connection with the general averment that plaintiff "suffered said damages as a proximate consequence of the negligence of the defendant in and about the carriage or transportation" of plaintiff's wife, is sufficient to sustain the judgment. Slight v. Frix, supra.

The evidence is without dispute that the train on which the plaintiff's wife was a passenger was crowded with passengers, and after it had stopped at Smith's Station to discharge passengers, and before plaintiff's wife and granddaughter had gotten off, the train, on signal given by the trainmen, was started and again stopped. There was some evidence offered by the plaintiff showing and tending to show that as soon as the train stopped the first time plaintiff's wife left her seat and, with the other passengers, started to the door of the coach where passengers were expected to leave the train, and before she could get off and just as she reached the platform of the car leading to the steps the train started with a sudden jerk, or, as some of the witnesses termed it, "a quick snatch," and plaintiff's wife was thrown to the ground and was injured.

On the other hand, the defendant's evidence tended to show that after the train had started and before it could be stopped the plaintiff's wife, in the face of warning not to do so, jumped from the steps while the train was in motion, and that her injury was the result proximately of her own negligence. It was the province of the jury to consider these conflicting phases and tendencies of the evidence, and for this reason the affirmative charge was properly refused. State v. Houston,83 Ala. 361, 3 So. 859; L. N. R. R. Co. v. Dilburn, 178 Ala. 600,59 So. 438; Southern Ry. Co. v. Morgan, 171 Ala. 294,54 So. 626; Southern Ry. Co. v. Burgess, 143 Ala. 372,42 So. 35.

An attempt by a passenger to alight from a moving train is not, as a matter of law, negligence, and whether or not such an act is negligence is not dependent solely upon the age or sex of the passenger, but rather upon the attending circumstances, such as the speed of the train, the physical condition of the passenger, whether the passenger is in-cumbered, and other conditions and circumstances. Charge 13 was properly refused, K. C., M. B. R. R. Co. v. Matthews, 142 Ala. 298, 39 So. 207; Dilburn, Adm'r, v. L. N. R. R. Co., 156 Ala. 237,47 So. 210; Southern Ry. Co. v. Morgan, supra. The conclusions before stated in dealing with the complaint and the affirmative charge justify the refusal of charge F.

The appellant's objection to the statements by plaintiff's counsel in his argument to the jury, made the basis of the fourth assignment of error, is not affirmatively shown to have been made at the time the objectionable statement was made, and no corrective action of the court was invoked. On the authority of B. R., L. P. Co. v. Gonzalez, 183 Ala. 285, 61 So. 80, Ann. Cas. 1916A, 543, we hold that the objection and exception disclosed by this record present nothing for review. From an examination of the oral charge of the court and the charges given at the instance of the defendant, it clearly appears that the issues as presented by the pleadings and proof were clearly defined and clearly presented to the jury. The evidence is in sharp conflict on the two material questions at issue, and after a careful examination of the evidence by the court en banc, we do not feel justified in holding that the verdict of the jury was contrary to the great weight of the evidence. Southern Ry. Co. v. Kirsch, 150 Ala. 659, 43 So. 796.

We are convinced, however, that the damages awarded are excessive in amount, and that the recovery should be reduced to the sum of $250. An order will therefore be entered directing the clerk to issue notice to the attorneys for appellee of this conclusion, and unless the appellee, through his attorneys, within 15 days after the service of such notice, shall file remittitur of $450 of the sum recovered by the judgment of the trial court, as authorized by the act approved September 17, 1915 (Acts 1915, p. 610), an order will be entered here granting the motion for new trial. Southern Express Co. v. Malone, 16 Ala. App. 414, 78 So. 408.

¹ 16 Ala. App. 639.