Opinion
6 Div. 411.
June 28, 1917. Rehearing Withdrawn October 23, 1917.
Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.
Tillman, Bradley Morrow and John S. Stone, all of Birmingham, for appellant. McArthur Howard, of Birmingham, for appellee.
The suit is for damages for personal injuries sustained by a passenger on one of defendant's street cars.
The complaint sufficiently avers the engagement of the defendant in the operation of a street car line as a common carrier of passengers, and that the plaintiff was a passenger on one of its cars "at said time and place" — December 8, 1915 — and on the car line between the cities of Birmingham and Bessemer, at or near one of its stations on said line, "to wit, Cleveland." Plaintiff's injury is particularly described, and it is averred that the same was proximately caused "by reason of the negligence of the defendant in and about the transportation of plaintiff as a passenger as aforesaid." We think the complaint was certain, as required by good pleading, and that it sufficiently averred defendant's duty to conserve plaintiff's safety as a passenger. B. R., L. P. Co. v. Goldstein, 181 Ala. 517, 61 So. 281.
The general grounds of demurrer need not be considered. Allen v. Fincher, 187 Ala. 599, 65 So. 946.
Plea 4 was subject to the demurrer sustained thereto. It cannot be said, as matter of law, that, after the giving of a mere signal by the conductor for the car to start, it would be negligence per se for a passenger to attempt to disembark. The assumption or conclusion of the plea is that the car had started simultaneously with the giving of the signal, and had attained such speed as that it was negligence on the part of a passenger to attempt to alight from the car. This conclusion subjected the plea to the objection pointed out by the demurrers. A plea of contributory negligence must not stop short of averring facts to which the law attaches the conclusion of negligence. T. C., I. R. R. Co. v. Herndon, Adm'r, 100 Ala. 451, 14 So. 287; Osborne, Adm'x, v. Alabama S. W. Co., 135 Ala. 571, 33 So. 687; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933, 935, where the authorities on this point are collected.
The several objections and exceptions reserved on the admission of evidence have been carefully considered and found to be without merit. The question, "Did you work any after that?" when taken in connection with the other evidence, was but a repetition of what plaintiff had theretofore testified without objection. He had said:
"I went home from the place where the accident happened. I did not work any at all after that."
This is further made clear by the testimony of the attending physician, to the effect that plaintiff was not "physically able to work now," and that there was a ligament torn loose at the hip.
The court committed no error in the ruling on the objection to the attempted cross-examination as to the contents of plaintiff's answers to the interrogatories propounded under the statute. The court stated to defendant, on making the foregoing ruling, however, that the interrogatories and answers might be introduced in evidence, and defendant's counsel declined to introduce them. Grasselli Chem. Co. v. Davis, 166 Ala. 477, 52 So. 35; B. R., L. P. Co. v. Oden, 164 Ala. 1, 51 So. 240; B. R., L. P. Co. v. Bush, 175 Ala. 49, 56 So. 731.
It has been held that a plaintiff may properly testify of physical pain suffered from the injury and as the result thereof. Western Steel Car F. Co. v. Bean, 163 Ala. 255, 262, 50 So. 1012; B. R., L. P. Co. v. Roach, 188 Ala. 306, 66 So. 82; Cent. of Ga. R. Co. v. Stephenson, 189 Ala. 553, 66 So. 495. The cases cited by appellant (Western Union Telegraph Co. v. Cleveland, 169 Ala. 131, 53 So. 80, Ann. Cas. 1912B, 534, Travis v. L. N. R. R. Co., 183 Ala. 415, 62 So. 851, and L. N. R. R. Co. v. Landers, 135 Ala. 504, 33 So. 482), are not in point. In Travis' Case, the witness was erroneously allowed to state his opinion that the cause of his illness was eating oysters. In Cleveland's Case, a suit for failure to deliver a message, there was no physical injury; and in Landers' Case, a suit against a common carrier for injury to cattle, it was declared that the witness could not testify to his conclusions as to the facts in issue.
In the instant case it is alleged that plaintiff was "thrown violently to the ground, and seriously and, he believes, permanently, injured, his rib broken, he was bruised and injured in and about his body and limbs, his hip injured," which injury he believes to be of a "permanent nature," etc., and that "he believes his earning capacity to be permanently impaired," etc. It is not necessary that it be alleged in terms that the injury was permanent. B. R., L. P. Co. v. Goldstein, 181 Ala. 517, 61 So. 281.
The court properly Instructed the jury of the measure of recovery for permanent injury under the pleading and the evidence tending to support the same.
At the request of the plaintiff the court gave written charge 3, for the error of which the cause must be reversed. Under this charge, appellant's several picas of contributory negligence would have to be proven to the reasonable satisfaction of the jury, that the defendant may be given the benefit of either. Such is not the law; nor was this instruction intended to be given such effect. This, however, was the express mandate of the written charge. In the oral charge it had been explained that proof of either of said pleas of contributory negligence, to the reasonable satisfaction of the jury, would prevent a recovery by plaintiff. Having requested in writing a contradictory charge, and thus induced the court to modify the oral charge, plaintiff is bound by the prejudicial error it contained. Talley v. Whitlock, 73 So. 976; W. U. Tel. Co. v. Griffith, 161 Ala. 241, 246, 50 So. 91; Lucas v. State, 144 Ala. 63, 67, 39 So. 821, 3 L.R.A. (N.S.) 412; L. N. R. R. Co. v. Hurt, 101 Ala. 34, 45, 13 So. 130; Vaughan v. Smith, 69 Ala. 92; Ex parte Winston, 52 Ala. 419.
199 Ala. 28.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN, MAYFIELD, and THOMAS, JJ., concur. SAYRE, SOMERVILLE, and GARDNER, JJ., dissent.