Opinion
6 Div. 318.
April 7, 1925. Rehearing Denied May 19, 1925.
Appeal from Circuit Court, Jefferson County; Dan A. Green, Judge.
Action for personal injuries by Reginald Thomas, a minor suing by his next friend, Olga Adams, against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
These charges were given at plaintiff's request:
"The court charges the jury that it is the duty of the jury in weighing the evidence to put that construction upon the evidence as will make all the witnesses speak the truth, if reasonably possible."
"The court charges the jury that it was the duty of the defendant's conductor and every servant of the defendant in charge of the operation of said train to exercise the highest degree of care, diligence, and skill in conserving the safety of the plaintiff, and the defendant is responsible for the slightest negligence on their part proximately causing injury to the plaintiff."
These charges — the bases of assignments 6 and 7 — were refused to defendant:
"The burden is on the plaintiff to reasonably satisfy from the evidence that the defendant's servants or agents were guilty of some wrongful act which proximately caused injury to the plaintiff."
"The jury is not allowed to speculate as to the damages, if any, the plaintiff may have suffered on account of the alleged wrong in requesting the removal of the suit case, if you believe from the evidence such request was made and was wrongful. If you are reasonably satisfied from the evidence that the plaintiff is entitled to recover, the plaintiff, to recover more than nominal damages, must reasonably satisfy you from the evidence, of damages which directly and proximately flowed and resulted from such request or instruction."
Nesbit Sadler, of Birmingham, for appellant.
Liability of a carrier for negligence is predicated upon the existence of the relation from which the duty arises, which plaintiff must affirmatively show. Mobile L. P. Co. v. Ellis, 207 Ala. 109, 92 So. 106. Not all acts resulting in injury are negligent. Sou. Ry. v. Hayne, 209 Ala. 186, 95 So. 879; C. of G. v. Carlisle, 2 Ala. App. 514, 56 So. 737; L. N. v. King, 198 Ala. 168, 73 So. 456; A.C.L. v. Farmer, 201 Ala. 603, 79 So. 35. The giving of an order is not negligent merely because it can be obeyed in a dangerous manner. Richmond R. Co. v. Bivins, 103 Ala. 142, 15 So. 515; Woodward Iron Co. v. Wade, 192 Ala. 651, 68 So. 1008; Williams v. Anniston Elec. Co., 164 Ala. 84, 51 So. 385; Seagle v. Stith Coal Co., 202 Ala. 3, 79 So. 301.
W.A. Denson, of Birmingham, for appellee.
The charge given for plaintiff is correct. Montgomery S.R. Co. v. Mason, 133 Ala. 527, 32 So. 261. Counsel discusses other questions, but without citing additional authorities.
This was an action by appellee against appellant claiming damages for injuries received by him while a passenger on one of appellant's trains.
The evidence for the plaintiff (appellee) tended to show that he got on one of defendant's passenger trains at Alexander City, Ala., which was coming to Birmingham, Ala., that he was at the time between 13 and 14 years of age; that he boarded the train with a heavy suit case filled with hams, Victrola records, and other articles; that the sides of the suit case were bulging; that he placed the suit case in the aisle of the coach near his seat; that the conductor of the train directed (commanded) him to place the suit case in the rack above; that he did so, but in doing so wrenched his back, causing considerable pain thereto from which he has suffered greatly, and for which injuries he claims damages of the defendant.
The evidence for the defendant tended to show that the conductor of the train did not direct the plaintiff to place the suit case on the rack, and that the rules and regulations of the railway company required the aisles of the coaches to be cleared of suit cases and luggage.
The defendant requested, in writing, the general affirmative charge in its favor, and its refusal is urged upon us as error that should reverse the case. Two insistences are made: First, that there was no proof of the existence of the relation of carrier and passenger between the defendant and the plaintiff; and, second, that no negligence on the part of defendant's agents or servants was shown.
As to the first proposition, we think that the facts shown that plaintiff boarded one of defendant's regular passenger trains at Alexander City and rode in the regular coach provided for passengers for several hours, and was seen and observed by defendant's conductor in charge of its said train, and not interrogated, or ordered to leave the train, or otherwise molested, was at least prima facie proof that he was accepted and being carried as a passenger, and, in the absence of any evidence to the contrary, was sufficient to maintain the allegation in the complaint that he was a passenger.
As to the second proposition, the record shows that the plaintiff was a child between 13 and 14 years of age, and the testimony as to the size and weight of the suit case, and the order given by the defendant's conductor to the plaintiff, we think, under the scintilla rule which prevails in our state, and by which we are bound, was sufficient to be submitted to the jury on the question of negligence vel non of the said conductor which proximately caused plaintiff's injuries.
The court did not err in refusing to give the said general affirmative charge. Williams v. L.N.R.R. Co., 150 Ala. 324, 43 So. 576, 10 L.R.A. (N.S.) 413.
No motion to set aside the verdict was made, hence we cannot consider the sufficiency of the evidence to support same.
The question asked on direct examination of defendant's witness Willmott, "You never felt unkindly toward the boy, did you?" was palpably leading, and objection thereto was properly sustained. The same witness was asked on direct examination, "If suit cases are in the aisles of the coaches, in what way might their presence interfere with carrying on the business of carrying passengers?" There was no error in sustaining the objection to this question. The jury could say, as well as the witness. The matter inquired about is one of common knowledge and does not require expert testimony, and there was no occasion for letting witness give his opinion or conclusion.
The charges given at plaintiff's request stated correct and approved principles of law, and were not abstract. The court's action in giving them was free from error.
The charge, refused to defendant, made the basis of assignment of error No. 6, was faulty, in that it pretermitted liability of defendant for a negligent omission, or failure, on the part of its servants or agents to do that which it was their duty to do.
The charge made the basis of assignment of error No. 7 seems to have been inaptly drawn, and its refusal was proper.
We find no prejudicial error in the record, and the judgment of the trial court will be affirmed.
Affirmed.