Opinion
6 Div. 269.
March 26, 1925. Rehearing Denied April 30, 1925.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
McClellan, Rice Stone and J. K. Jackson, all of Birmingham, for appellant.
The oral instruction of the court imposed too high a degree of care upon the defendant. B. R., L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262; M. E. Ry. v. Mallette, 92 Ala. 209, 9 So. 363; G. A. U. v. Causler, 97 Ala. 235, 12 So. 439; Sou. Ry. v. Burgess, 143 Ala. 364, 42 So. 35; Elliott on R. R. § 1585; C. of G. v. Barnitz, 14 Ala. App. 354, 70 So. 945; Best Park v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929; Tri-City R. Co. v. Gould, 217 Ill. 317, 75 N.E. 493; North Chicago S. R. Co. v. Polkey, 203 Ill. 225, 67 N.E. 793; 10 C. J. 858.
London, Yancey Brower and Clara Cain, all of Birmingham, for appellee.
Count 1 sufficiently charged negligence. B. R., L. P. Co. v. Jordan, 170 Ala. 535, 54 So. 280; B. R., L. P. Co. v. Gonzalez, 183 Ala. 352, 61 So. 81; B. R., L. P. Co. v. Barrett, 179 Ala. 279, 60 So. 262. There was no error in the oral charge of the court. B. R., L. P. Co. v. Jordan, supra; S. A. L. v. Mobley, 194 Ala. 211, 69 So. 614, L. N. v. Young, 168 Ala. 551, 53 So. 213.
Appellee recovered a judgment for injuries received on one of appellant's trains conveying United States mail, while engaged in his duties as a postal clerk thereon. The relation between the plaintiff and defendant was that of carrier and passenger, and it is not questioned that the defendant owed to the plaintiff the same degree of care as was due its passengers. Southern Ry. Co. v. Harrington, 166 Ala. 630, 52 So. 57, 139 Am. St. Rep. 59; 6 Cyc. 542.
There were several exceptions reserved by the defendant to separate portions of the oral charge of the court, and the assignments of error based thereon constitute the question of prime importance on this appeal. The portions of the oral charge to which these exceptions were reserved appear in the fifth, eighth, tenth, eleventh, and twelfth assignments of error, and these assignments appear in the report of the case. The point is taken against these instructions that they require of defendant the duty of exercising the highest degree of skill and diligence in conserving plaintiff's safety, without any qualifying language to the effect that such skill and diligence suffices if it is of that degree known to careful, diligent, and skillful persons engaged in such business. An instruction of like character was considered and condemned in Birmingham Ry., L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, where many of our cases are reviewed. The charge there condemned was as follows:
"It is the duty of a street car company to exercise the highest degree of care known to human skill and foresight in regard to the carriage of its passengers, and the carrier is liable for the slightest degree of negligence."
After reviewing a number of our decisions, the court said:
"The 'highest degree' of care, skill, and diligence is a relative term, and means the highest degree required by the law in any case where human safety is at stake, and the highest degree known to the usage and practice of very careful, skillful, and diligent persons engaged in the business of carrying passengers by similar means and agencies. * * * It does not mean that every possible or conceivable care and precaution which might increase, or even assure, the safety of the passenger, must be taken, but only such as are reasonably practicable under the circumstances; i. e., reasonably consistent with the practical operation of the carrier's business. * * * We are satisfied that the language of the charge under consideration, though somewhat inapt and obscure in meaning, exacts of carriers a higher degree of care than the law requires of them, and that the trial court erred in thus instructing the jury. Obviously many things conducive to safety may be known to human skill and perceptible to human foresight, and yet the most careful and skillful carriers may seldom or never use such means or precautions because they are entirely impracticable and wholly inconsistent with the rational operation of their business."
We are of the opinion that this authority and these quotations therefrom suffice to show that the essential qualification of such instructions was here omitted, and that these exceptions to the oral charge of the court were well taken and constitute reversible error. Upon a careful reading of the charge as a whole, as well also the charges given at defendant's request, we are unable to find that this error was cured or that it was without injury. Under our decisions these instructions exacted too high a degree of care, and nothing appears in the record corrective of the error.
The demurrer to count 1 was properly overruled. Birmingham Ry., L. P. Co. v. Jordan, 170 Ala. 530, 54 So. 280; Birmingham Ry., L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262.
The only objection urged against count 3 is the omission of the word "negligently" in the concluding paragraph. Whether the count construed as a whole sufficiently charges negligence we need not stop to inquire, however, as, in view of the reversal of the cause, the objection is one so readily amended upon another trial we may presume all question thereto will be eliminated.
For the error indicated, let the judgment be reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.