Opinion
6 Div. 779.
October 17, 1935.
Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.
Lange, Simpson Brantley, of Birmingham, for appellant.
A count alleging that plaintiff was merely present on a street car at the time of receiving an injury shows no more than that plaintiff was at the time a trespasser or licensee, and out of such allegation arises merely a duty on the part of the operator of the car not to willfully or wantonly injure plaintiff, and an allegation that plaintiff was there negligently injured fails to show any breach of duty. Reed v. Ridout's Ambulance, 212 Ala. 428, 102 So. 906. Every movement of a street car does not constitute negligence as matter of law as to a passenger waiting to alight from the car, and in such event there must be a negligent movement of the car in order to impose liability on the operator thereof. The oral charge, in the particular excepted to, tends to exclude from the consideration of the jury whether there was a movement of the car, and, even if there was a movement and an unusual movement, Did it result from the negligence of the operator of the street car?
Harrison Kendrick, of Birmingham, for appellee.
A street railway is required, as a common carrier of passengers, to exercise the highest degree of care. The complaint describes plaintiff's presence as that of a passenger. Birmingham Elec. Co. v. Shephard, 215 Ala. 316, 110 So. 604. Considered as a whole, there was no possible error in the oral charge. If the portion in question was objectionable, it could be excused on the ground that defendant requested its written charge 4 to the same effect.
The trial was had on count 1 of the complaint; and the overruling of demurrer thereto is assigned as error.
Count 1 alleged, among other things, that plaintiff was a passenger on a street car operated by the defendant on date of December 5, 1933, and at the place of her injury. The later averment of negligent operation while plaintiff was present on said street car will be taken with the former averment that plaintiff was a passenger on the car at said time and place. These averments show the duty defendant owed plaintiff at the time and place in question to exercise the highest degree of care and skill not to injure her as a passenger. The rule permitting generality of averment, in respects here pertinent, in complaints such as this, is stated in Armstrong, Adm'x, v. Montgomery Street Railway Co., 123 Ala. 233, 26 So. 349; Dwight Manufacturing Co. v. Holmes, 198 Ala. 590, 73 So. 933; and Birmingham Electric Co. v. Shephard, 215 Ala. 316, 110 So. 604. The foregoing count (count 1) was in accordance with such rule and test of sufficiency.
When the whole of the general charge is considered, there was no error in that part of the charge to which exception was reserved. Moreover, defendant had requested and was given charge 4, which was warranted under the evidence adduced by plaintiff of the negligent moving of the car while plaintiff was attempting as a passenger to alight therefrom.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.