Opinion
6 Div. 561.
October 30, 1930. Rehearing Granted November 28, 1930. Further Rehearing Denied January 29, 1931.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Lange, Simpson Brantley and Memory L. Robinson, all of Birmingham, for appellant.
A count is demurrable for ambiguity and uncertainty. Highland Ave. B. R. Co. v. Dusenberry, 94 Ala. 413, 10 So. 274; Alabama G. S. R. Co. v. Cardwell, 171 Ala. 274, 55 So. 185; Birmingham R. L. P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361; 1 Chitty, Pleading (16th Am. Ed.) 256. Where a count charges wantonness or willfulness in general terms, and then sets up the facts on which such charge is based, the facts set up must of themselves show wantonness or willfulness. Blackmon v. Central of Ga. R. Co., 185 Ala. 635, 64 So. 592; Sington v. Birmingham R. L. P. Co., 200 Ala. 282, 76 So. 48; Birmingham R. L. P. Co. v. Lindsey, 140 Ala. 312, 37 So. 289. It is not every sudden start or movement of a street car that will render defendant liable, but only those unusual and unnecessary movements. Mobile L. R. Co. v. Bell, 153 Ala. 90, 45 So. 56; Birmingham R. L. P. Co. v. Parker, 156 Ala. 251, 47 So. 138; Southern R. Co. v. Norwood, 186 Ala. 49, 64 So. 604; Birmingham R. L. P. Co. v. Mayo, 181 Ala. 525, 61 So. 289; Birmingham R. L. P. Co. v. Hawkins, 153 Ala. 86, 44 So. 983; Birmingham R. L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262. The mother of plaintiff should not have been permitted to testify as to whether plaintiff had complained of pain before and after the accident. Alexander v. Handley, 96 Ala. 220, 11 So. 390; Birmingham R. L. P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304; Western S.C. F. Co. v. Bean, 163 Ala. 255, 50 So. 1012; Rowland v. Walker, 18 Ala. 749. The remarks of counsel for plaintiff in opening statement to the jury were of such nature as that their harmful effect could not be eradicated by the action of the court; a mistrial should have been ordered. Birmingham R. L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037. When the verdict of a jury is grossly excessive, the trial court should set it aside on motion for new trial. Sutherland on Damages, 1494; Sedgewick, Measure of Damages, 655; Cox v. Birmingham R. L. P. Co., 163 Ala. 170, 50 So. 975; National Sur. Co. v. Mabry, 139 Ala. 217, 35 So. 698; Louisville N. R. Co. v. Bizzell, 131 Ala. 429, 30 So. 777; Birmingham R. L. P. Co. v. Coleman, 181 Ala. 478, 61 So. 890. To sustain a charge of wantonness or willfulness, it must be shown that the party charged had knowledge of the danger, present or impending, to the other party. Birmingham R. L. P. Co. v. Jung, 161 Ala. 461, 49 So. 434, 18 Ann. Cas. 557; Birmingham R. L. P. Co. v. Nalls, 188 Ala. 352, 66 So. 5; Boyette v. Bradley, 211 Ala. 371, 100 So. 647.
B. F. Smith, of Birmingham, for appellee.
Actual knowledge need not be positively shown, but may be inferred from the circumstances. Southern R. Co. v. Bush, 122 Ala. 470, 26 So. 168; Birmingham R. L. P. Co. v. Jung, 161 Ala. 461, 49 So. 434, 18 Ann. Cas. 557. Negligence may be stated in general terms. Southern R. Co. v. Crawford, 164 Ala. 178, 51 So. 340; Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779; Montgomery L. P. Co. v. Thombs, 204 Ala. 678, 87 So. 205. It is the duty of those in charge of a street car to see that no passenger is in a position which may be rendered perilous by starting the car. Birmingham U. R. Co. v. Smith, 90 Ala. 60, 8 So. 86, 24 Am. St. Rep. 761; Highland Ave. B. R. Co. v. Burt, 92 Ala. 291, 9 So. 410, 13 L.R.A. 95; Steeg v. St. Paul C. R. Co., 50 Minn. 149, 52 N.W. 393, 16 L.R.A. 379. The action of the trial court removed any harmful effect that might have been done appellant on account of argument of counsel. A mistrial was not in order. Birmingham Baptist Hospital v. Branton, 216 Ala. 326, 113 So. 79.
The count as amended was free from the ground of demurrer that the facts averred did not sustain the charge of wantonness or willfulness as stated in the appropriate count. Blackburn v. Central of Ga. Ry. Co., 185 Ala. 635, 64 So. 592; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469.
There was, however, no ambiguity and uncertainty in the averment of facts employed in the complaint and the use of the words "said servants and agents"; there was no mention of servants or agents thereto to cause confusion, and "said" was capable of being omitted because of the want of an antecedent to which it may refer with uncertainty as to which of defendant's servants it applied. Birmingham Ry. L. P. Co. v. Goldstein, 181 Ala. 517, 61 So. 281. The context was such as that it could apply only to the servants or agents in control of the car at the time and place in question.
When the testimony of plaintiff in her own behalf, and that of Miss Satterfield and Mr. Sanders, is considered, there was no error in refusing the general affirmative instruction requested as to count A.
Defendant's evidence was that the car stood still and there was no movement of any character after passengers began to get off the car. The witness Satterfield testified that after the car had stopped for passengers to disembark and while they were so engaged, it was moved or started with a sudden jerk as plaintiff and witness were approaching the door and platform, and that this precipitated plaintiff to the floor at or on the platform or vestibule. Plaintiff gave like evidence as to time, place, manner, circumstances, and cause of her fall, though she said the "cars always started with a sudden jerk." The "sudden jerk" cases adverted to (Mobile Light Railroad Co. v. Bell, 153 Ala. 90, 45 So. 56; Birmingham R. L. P. Co. v. Hawkins, 163 Ala. 86, 44 So. 983, 16 L.R.A. (N.S.) 1077; Birmingham R. L. P. Co. v. Parker, 156 Ala. 251, 47 So. 138; Birmingham R. L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262) have no application to the state of facts here presented of passengers being invited to get off a car and not being given reasonable opportunity before the car is suddenly started. Birmingham Union Ry. Co. v. Smith, 90 Ala. 60, 8 So. 86, 24 Am. St. Rep. 761; Highland Avenue Belt Railroad Co. v. Burt, 92 Ala. 291, 9 So. 410, 13 L.R.A. 95. Our cases are collected in 56 A.L.R. 981. The rule there announced is (56 A.L.R. 989, 990):
"If a passenger is injured while in the act of alighting from a car, and before he has had a reasonable opportunity to do so, the carrier is liable, regardless of the character of the jerk with which the car is started. Louisville Interurban R. Co. v. Whitesides (1925) 207 Ky. 733, 270 S.W. 19. See to the same effect, Franklin v. Visalia Electric R. Co. (1913) 21 Cal.App. 270, 131 P. 776; Green v. Metropolitan Street R. Co. (1906) 122 Mo. App. 647, 99 S.W. 28."
The knowledge of the facts and circumstances and notice thereof has been held sufficient on which to submit the charge of wantonness. However, wantonness on the part of the servant in charge must not be based on "anything short of actual knowledge, yet actual knowledge need not be positive and directly shown" as any other fact is shown. B. R. L. P. Co. v. Jung, 161 Ala. 461, 470, 49 So. 434, 18 Ann. Cas. 557; N. B. R. R. Co. v. Liddicoat, 99 Ala. 545, 13 So. 18.
The degree of care required of carriers under our cases is thus stated (56 A.L.R. 990):
"As to the degree of care required of a carrier in affording passengers time and opportunity to alight before starting a street car, the authorities are not in exact accord. According to one line of authorities, when a street car stops to allow a passenger to alight the conductor or motorman is under the duty to hold the car stationary until all who wish to alight are safely off the car, and he must see and know, before putting the car in motion again, that no one is in the act of alighting or in any other perilous position. * * * Birmingham R. Light P. Co. v. Mayo (1913) 181 Ala. 525, 61 So. 289; Birmingham R. Electric Co. v. Wildman (1898) 119 Ala. 547, 24 So. 548; Highland Ave. B. R. Co. v. Burt (1890) 92 Ala. 291, 13 L.R.A. 95, 9 So. 410, 2 Am. Neg. Cas. 73; Birmingham Union R. Co. v. Smith (1890) 90 Ala. 60, 24 Am. St. Rep. 761, 8 So. 86, 2 Am. Neg. Cas. 58."
There was no error in refusing charges 39, 40, 41, and 42 for reasons and on authorities above stated. Birmingham R. L. P. Co. v. Mayo, 181 Ala. 525, 528, 61 So. 289; 56 A.L.R. 981, note. The law of the case was fully and fairly covered by the oral charge of the court and many given charges for defendant.
The trial court permitted the mother of plaintiff to testify, over objection of defendant, whether or not the minor daughter complained of pains before and after the injury — it was a relevant inquiry under evidence tending to show the physical condition of plaintiff as affected by her injury. In this there was no error. The case of Birmingham R. L. P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304, is different — applying to objection to whether plaintiff did her work before the injury denied as a self-serving declaration. In this question there was tendency of evidence of the same or like pains before and after the injury. The witness had theretofore testified, without objection, of the physical condition of plaintiff, saying: "She came home from time to time complaining of pain in her back and hips. I have been giving her treatment since the injury for complaints of pain or injury to her back. * * * My daughter had never in her life had any trouble with her menstrual period prior to the date of this accident; the first time after the accident it was the other way, just about twice to what she should have been, and from that on to now I have to doctor her every time and watch her, she has such pains in her back until I am afraid for her to go off from me." The attending physician had testified that the evidence of injury he saw "was sufficient to produce pain"; and plaintiff had testified that the injuries sustained caused pain at the time and since, and at the periods inquired about.
The action of the court in restraining counsel for plaintiff in his opening statement of his case to the jury was sufficient, and there was no error in declining to enter, on defendant's motion, a mistrial. The court did its duty in the premises. Birmingham Baptist Hospital v. Branton, 216 Ala. 326, 113 So. 79.
The trial court reduced the judgment by a substantial sum, which was acceded to by the plaintiff. After an examination of the evidence, we are not impressed that there should be further reduction of the amount in this court under the rules that obtain. That is, we cannot say that, allowing all reasonable presumptions in favor of the correctness of the verdict, the preponderance of the evidence is against the verdict, and it is so decided as to induce the conviction that it is wrong and unjust, and that new trial should have been granted. Nashville, Chattanooga, St. Louis Railway Co. v. Crosby, 194 Ala. 338, 70 So. 7; Cudd v. Bentley, 204 Ala. 586, 87 So. 85; Louisville N. R. Co. v. Rush, 208 Ala. 516, 94 So. 577.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
On Rehearing.
The evidence has been re-examined. We are of opinion that there was reversible error as to the refusal of affirmative instructions requested by defendant as to the wanton count. To warrant submission thereof to the jury required an inference upon an inference that the signal was given by the conductor to start the car while passengers were disembarking. This cannot be done. It results that the rehearing is granted for refusal of the affirmative charge as to count A.
Rehearing granted; judgment of affirmance set aside, reversed, and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.