Opinion
6 Div. 692.
November 21, 1918. Rehearing Denied January 16, 1919.
Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.
J. B. Ivey and W. A. Denson, both of Birmingham, for appellant.
Tillman, Bradley Morrow, of Birmingham, for appellee.
Action by appellant, a passenger, against appellee a common carrier, for personal injuries. It is the duty of a street railroad carrier to provide a reasonably safe place for the landing of its passengers, as explained in Montgomery Street Ry. Co. v. Mason, 133 Ala. 508, 32 So. 261, and other of our cases; but this rule has no reference to independent agencies operating in the street such as the motorcycle mentioned in plea 2. The carrier is no more responsible for them than is the passenger. The passenger must therefore, upon alighting from the street car, exercise reasonable care! to prevent injury by such agencies, and whether he has done so will in general be a question for the jury in view of all the surroundings. The plea in question put the plaintiff upon fair notice as to the nature of the facts defendant proposed to show in avoidance, and characterized plaintiff's action in the premises as negligent. It is not perceived how the pleader might have more serviceably stated his defense. The demurrer, as for any objection specifically stated against the plea, was properly overruled.
Charge 1, given at the request of defendant, defined proximate cause in the familiar language of our decisions. There was no error in giving it. Tobler v. Pioneer Mining Mfg. Co., 166 Ala. 482, 52 So. 86. So in respect to defendant's charge 7. The use of the word "even" in the last-mentioned charge might have justified its refusal (B. R. L. P. Co. v. Saxon, 179 Ala. 161, 59 So. 584; Manistee Mill Co. v. Hobdy, 165 Ala. 417, 51 So. 871, 138 Am. St. Rep. 73); but in no case has a judgment founded upon the verdict of a jury been reversed for such a departure from critical accuracy in the analysis of some conception which the court has stated to the jury correctly in general.
Defendant's charge 3 was clearly correct. The carrier's full duty in the absence of special circumstances of which there is no intimation in this record, is performed when the passenger is safely deposited on the ground. If afterwards the passenger walks into danger or harm overtakes him by reason of the intervention of an independant agent the carrier cannot be held for that. Mason Case, supra. So as to defendant's charges 5 and 6.
It cannot be said that it is negligence per se to stop a street car 50 or 75 feet from the regular stopping place, unless in the circumstances predicated in defendant's charge 8. The court could not affirm, as a general proposition, that such a stop for the delivery of passengers would not constitute a substantial performance of the contract of carriage, if that were the subject of investigation, or a substantial compliance with an ordinance requiring stops at certain places, if that were material and the court were informed in some way, by pleading or otherwise — as the court in this case does not appear to have been — that the ordinance was relied upon. What the court did in this case was to inform the jury that to stop a car 50 or 75 feet from the regular stopping place was not necessarily negligence; in other words, that the question of negligence in such case was a question for the jury.
Appellant's eighth assignment of error (charge 9 given for defendant) is sufficiently answered by what has been said as to charge 1.
Defendant's charge 2 was correct. Tobler Case, supra.
Charge 11, given for defendant, was couched in the language of plea 2, which we have held good. There was no error in giving it. Possibly the charge might have been refused without error because it failed to define "negligently" (Ala. Consol. C. I. Co. v. Heald, 168 Ala. 626, 648, 53 So. 162), but that does not imply reversible error in its giving. The charge asserted a correct legal proposition, and if plaintiff apprehended a necessity for definition, it should have been requested in an explanatory charge.
Under the undisputed evidence, charge 12 stated a correct proposition. If further elaboration was desired it might have been had in an explanatory charge.
Charges 13 and 14 have drawn from counsel a citation of Armstrong v. Montgomery Street Ry. Co., 123 Ala. 249, 26 So. 349, where the question at issue was whether the death of plaintiff's intestate had resulted proximately from the negligence charged. The court in general terms defined those consequences for which a person guilty of negligence may be held answerable. 123 Ala. 249, 250, 26 So. 349. There was no such question in the present case. There is here no question as to the quantum of damages, no question as to the remoteness of consequences suffered or damages claimed; the question is whether defendant was negligent in failing to anticipate and prevent the occurrence which resulted in injury to plaintiff, and the object of these charges is to define due care. While no one formula can be said to cover every aspect of a many-sided problem, and the charges under review are no better than some others in that respect, they contain a definition that was reasonably useful in the premises. Every man must, in his conduct with reference to others, be guided by a reasonable estimate of probabilities. Southern Ry. Co. v. Carter, 164 Ala. 103, 51 So. 147. This is the general effect of these charges, and error to reverse cannot be predicated upon the giving of them.
Charge 15 was not error to reverse. Its naked legal proposition was correct. If plaintiff apprehended a tendency to mislead by reason of the absence of correlated propositions, which may have had room for operation, the rule is well settled that such tendency should have been met by a request for explanation, and that judgments will not be reversed for the giving of charges merely having a tendency to mislead, unless it is manifest upon the record that the jury has been in fact misled to the prejudice of appellant. Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642.
The proposition of charges 16, 19, and 21 — they all come substantially to one proposition — was correct, as we stated in effect in our observations upon charge 3.
Charge 17 might well have been refused as tending to mislead; but it stated a correct proposition of law, and there can be no reversal for giving it. Karpeles v. City Ice Delivery Co., supra.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.