Citation Numbers: 183 Ala. 273, 61 So. 80
Judges: Anderson, Dowdell, Ferguson, Graffenried, Hon, Mayfield, McClellan, Sayre, Somerville
Filed Date: 2/13/1913
Status: Precedential
Modified Date: 7/27/2022
— The first count of the complaint alleges that plaintiff was a passenger on one of defendant’s cars, her destination being Sixth avenue and Twenty-Third Street North, in Birmingham; and that “while plaintiff was in the act of alighting or disembarking from said car it started forward with a sudden, violent jerk, throwing her with great force and violence down to and upon the floor of the car, injuring her,” etc. The concluding averment is “that her said injuries were proximately caused by the negligence of the defendant in the negligent manner in which it ran or operated its said car.”
Defendant demurred to this count, on the grounds, substantially, that it does not show that plaintiff was alighting at a proper time or proper place, and hence does not show that the sudden start and jerk was a violation of any duty owed to plaintiff by defendant.
On the authority of B. R., L. & P. Co. v. Haggard, 155 Ala. 343, 46 South. 519, L. & N. R. R. Co. v. Church, 155 Ala. 329, 46 South. 457, 130 Am. St. Rep. 29, B. R., L. & P. Co. v. Oden, 164 Ala. 1, 57 South. 240, B. R., L. & P. Co. v. Jordan, 170 Ala. 535, 54 South. 280, B. R., L. & P. Co. v. Fisher, 173 Ala. 623, 55 South. 995, this count must be held sufficient as against the demurrer; and its overruling by the trial court was therefore free from error.
We have, in this connection, considered the rulings found in B. R., L. & P. Co. v. Parker, 156 Ala. 251, 47 South. 138, and B. R., L. & P. Co. v. Weathers, 164 Ala. 23, 51 South. 303. In those cases, as in the present case, the complaint stated the mode of the injury by a recital of facts which, standing alone, were not sufficient to
Demurrers were sustained to defendant’s pleas 5 and 7, which charge plaintiff with contributory negligence proximately causative of her injuries. Plea 5 alleges that “while .plaintiff was going from her seat to the door of said car said car was in motion, and that it was plaintiff’s duty to exercise reasonable care to support herself, but that plaintiff negligently failed to exercise such reasonable care to support herself,” etc. Plea 7 alleges that “plaintiff while standing in the aisle, or upon the platform of said car, while said car was in motion, negligently failed to properly support and maintain herself in such a standing position, whereby,” etc. The demurrers attack these pleas on the ground of the insufficiency of their averment of the facts relied upon as constituting and showing contributory negligence.
It is the settled rule in this state that in such pleas facts must be alleged — facts which are sufficient, in themselves, to sIioav plaintiff’s negligence as a conclusion of law, or to reasonably suggest it as an inference of fact. In the latter case, the facts being proved, negligence vel non is a question of inferential fact for the
The pleas in question tacitly admit that plaintiff was injured, while in the act of alighting from the car, as the result of being thrown from her feet onto the floor by reason of the car starting forward with a sudden, violent jerk. Their language is reasonably susceptible of two applications: (1) To the failure of plaintiff to make proper and adequate use of her legs and feet for the support of her body; or (2) to her failure to make use of such external supports as common knowledge teaches us the structure of the car might offer to either hands or feet — in both cases without due regard to the natural impairment of her equipoise while walking or standing on a moving car.
So far as the first alternative is concerned, we think the pleas sufficiently show the duty of plaintiff and its negligent omission by her, as contributory to her injury. But, with respect to the second alternative, we think it is deficient in omitting any averment of facts which might reasonably impose upon a debarking passenger the duty of taking the extraordinary precautions hypothesized — such facts, for example, as the age or physical infirmity of the passenger, the incumbrances carried by her, the speed of the car, and the consequent in
We note, in passing, that, while a plea substantially like these was interposed in B. R., L. & P. Co. v. Selhorst, 165 Ala. 475, 51 South. 569, its sufficiency in these aspects was not determined.
The trial court refused to give this charge, as requested in writing by the defendant: “If you believe from the evidence that plaintiff walked down the aisle when the car was in motion, then I charge you that plaintiff assumed the risk of all proper and ordinary movements of the car.” This charge, it seems, states a correct proposition of law. — B. R., L. & P. Co. v. James, 121 Ala. 120, 123, 25 South. 847; L. & N. R. R. Co. v. Smith, 129 Ala. 561, 30 South. 571. It must, however be pronounced abstract and properly refused in the present case, in view of the absence of any evidence tending to show that' plaintiff was injured while walking down the aisle of the car while it was in motion, or by reason of this walking; for all the testimony shows that she was standing at the back of the car at the time she lost her balance and fell.
The trial court refused also the following charge, requested in writing by the defendant: “If, after a full and careful consideration of all the evidence, any individual juror is not reasonably satisfied from the evidence that plaintiff was negligently or wantonly or willfully injured, then you cannot find for the plaintiff.” If the question were before us for the first time, the writer would be much inclined to approve the dissenting views of Denson, J. (concurred in by Weakley, C. J.), in the case of B. R. L. & P. Co. v. Moore, 148 Ala.
The trial court overruled defendant’s objections to the following statements made by plaintiff’s counsel in his closing argument to the jury: (1) “Millions of nickels and dimes go into the coffers of the company and to the stockholders.” (2) “We give them valuable franchises.” (3) “Why didn’t they put on their corps of men that hang around the court?” It is earnestly argued that permitting these statements to go to the jury
In Cross v. State, 68 Ala. 476, 484, Judge Stone, speaking the conclusions of this court as to reversal on error for improper statements by counsel in argument, said: “There must be objection in the court below, the objection overruled, and an exception reserved. The statement must be made as of fact; the fact stated must be unsupported by any evidence, (and) must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury.”
The first two statements are not arguments, but statements of fact, pure and simple. They find no support whatever in the evidence; nor are they in the slightest degree relevant to any issue that was before the jury. Have these statements a natural tendency to influence the finding of the jury?
We have given due consideration to this question, and cannot escape the conviction that they distinctly have such a tendency. They presented to the jury a consideration of the wealth, revenues, and advantages enjoyed by the defendant corporation, and must have carried the sinister suggestion that those matters were to be considered by the jury in determining, either the fact of defendant’s responsibility, or the amount of the penalty it ought to pay. For it is to be borne in mind that the trial judge, by his refusal to exclude these statements when objected to, in effect informed the jury that they were proper matters for their consideration. It may be conceded that they are matters which most intelligent men would know about anyway; but it is to be presumed that jurors would not violate their oaths by resort
It is true that the trial judge, in his oral charge, after-wards said to jury: “It is immaterial whether the stockholders get the nickels or not, or Avhether the bondholders, or it is not material where they go to ; the material inquiry in this case is whether or not the plaintiff is entitled to recover.” But this clearly falls very far short of removing from the jury’s consideration, especially on the question of the amount of damages, the obnoxious fact that the defendant corporation was getting millions of nickels and dimes; and it does not withdraAV the fact that it was enjoying valuable franchises.
We do not overlook the principles declared in Cross v. State, supra, and other later cases, emphasizing the impolicy of interfering with counsel in framing his arguments, in drawing and stating his inferences, and in using his illustrations, except in cases of flagrant and clearly prejudicial abuse. But when counsel leaves the field or argument, inferences, and illustration, and states to the jury, as independent facts, -matters that are not in evidence at all, a different rule is applicable; and courts cannot hesitate to interfere whenever necessary to prevent such an abuse of the proper functions of counsel in argument. This subject has been considered and the authorities reviewed by us in the recent case of B. R., L. & P. Co. v. Drennen, 175 Ala. 338, 57 South. 876, to which we here refer. See, also, L. & N. R. R. Co. v. Holland, 173 Ala. 675, 55 South. 1001, 1007.
Reversed and remanded.