Summary
In Mobile Light R. Co. v. Phillips, 24 Ala. App. 318, 135 So. 424, certiorari denied, 223 Ala. 218, 135 So. 426, a given written charge was attacked on the ground that it assumed the street railway was a common carrier and the plaintiff was a passenger.
Summary of this case from Dean v. MayesOpinion
1 Div. 976.
April 14, 1931. Rehearing Denied May 19, 1931.
Appeal from Circuit Court, Mobile County; George F. Smoot, Judge.
Action for damages for personal injuries by Lizzie Phillips against the Mobile Light Railroad Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Mobile Light R. Co. v. Phillips (1 Div. 669) 223 Ala. 218, 135 So. 426.
The following charge was given at plaintiff's request:
"1. Gentlemen of the jury, the court charges you that the burden of proof in this case is on the Mobile Light Railroad Company to reasonably satisfy you by the evidence that the operator of the street car was not guilty of any negligence proximately causing or proximately contributing to cause the accident in which the plaintiff claims to have been injured."
The following are charges refused to defendant:
"B. The court charges the jury that they are not authorized under the evidence in this case to find that the street car in question was moving faster than as stated in the testimony given by the witnesses."
"A(1) The court charges the jury that there is no evidence in this case from which the jury can find that the operator of the defendant's car could have stopped the car any quicker than it was stopped, after the motorman discovered that the truck was being moved out from the curbing."
"B(1) The Court charges the Jury that there is no evidence in this case from which the jury could find that the operator of the car was guilty of any negligence in running the car in question at the speed at which it was operated."
Harry T. Smith Caffey, of Mobile, for appellant.
To place the burden upon defendant of disproving negligence, it must first have been shown that the relation of carrier and passenger existed. A charge assuming the existence of this relation was error. Where there are no circumstances contradicting the statements of the witnesses, the jury has no right to find that the street car was moving faster than was testified by the witnesses. The court cannot take judicial knowledge as to the distance within which a street car could be stopped, and charge A(1), thus charging in effect, should have been given. Garth v. Ala. Tr. Co., 148 Ala. 97, 42 So. 627; Johnson v. B. R. L. P. Co., 149 Ala. 529, 43 So. 33; Southern R. Co. v. Gullatt, 150 Ala. 320, 43 So. 577; Mobile L. R. Co. v. Baker, 158 Ala. 491, 48 So. 119.
Outlaw, Kilborn Seale, of Mobile, for appellee.
Charge 1, given for plaintiff, correctly places the burden of proof. Birmingham Electric Co. v. Mealing, 214 Ala. 597, 108 So. 511; Seaboard Air Line R. Co. v. Mobley, 194 Ala. 211, 69 So. 614. The court, in giving this charge, properly assumed the existence of the relation of carrier and passenger; the same being clearly shown, without dispute, by the evidence. Alabama Power Co. v. Hines, 207 Ala. 346, 92 So. 611; Carter v. Chambers, 79 Ala. 223. Charges, predicating recovery upon the jury's belief of the undisputed evidence, tend to mislead, and are properly refused. Flaherty v. People's Bank, 216 Ala. 542, 113 So. 910. "No evidence" charges are properly refused. Carraway v. Graham, 218 Ala. 453, 118 So. 807.
This was a suit by appellee, alleging that she had been injured while a passenger upon one of appellant's street cars, by reason of a collision between the street car and a motor vehicle, which resulted from the negligence of the appellant, its servant or agent.
The case was tried upon the general issue.
The damages awarded were small.
Appellant inveighs against the giving of written charge 1, at the request of appellee, because, as it rightly says, it assumes that appellant was a common carrier, etc.; and that appellee was a passenger.
There is no contention that the said charge states the law incorrectly, based upon these two assumptions. Birmingham Elec. Co. v. Mealing, 214 Ala. 597, 108 So. 511.
So far as the attack on the said charge is rested on the two "assumptions," mentioned, we merely observe that there was, certainly, a tacit admission by appellant that it was a common carrier of passengers, etc., and an affirmative admission that appellee was a passenger. The whole evidence shows, without any sort of dispute, these two things.
Where this situation exists, the quoted language, following, taken from the opinion by Mr. Justice Miller, for our Supreme Court, in the case of Ala. Power Co. v. Hines, 207 Ala. 346, 92 So. 611, 612, is applicable, to wit: "Chief Justice Stone, in Carter v. Chambers, 79 Ala. 227, wrote: 'Hence the rule that in charging juries it is improper to assume or state as fact any material matter which depends on the sufficiency of oral testimony for its establishment. * * * The exception to the rule is that, when the record shows affirmatively that certain facts are clearly shown and not disputed — not made any part of the contention — then it is not error if they be assumed in the charge to be facts, and stated as such without hypothesis.' " (Italics ours.)
So we hold it was not error, in this particular case, to give to the jury appellee's written requested charge 1.
There was no motion for a new trial in the case. Hence we are not called upon to give our decided view as to the weight and sufficiency of the evidence to support the verdict returned.
We doubt that we could rightfully say that there was not a "scintilla" of evidence supporting appellee's claim, in which event we could not, of course, hold that appellant's written requested general affirmative charge was erroneously refused. But what purports to be said requested general affirmative charge is in this language: "A. The court charges the jury that if they are reasonably satisfied of the truth of the undisputed evidence in this case, they must find a verdict for the defendant." And our Supreme Court has held that "requested charges predicating recovery on jury's belief 'of the undisputed evidence' held properly refused as having tendency to mislead or mystify jury as to evidence to be looked to." Flaherty v. People's Bank of Mobile, 216 Ala. 542, 113 So. 910.
Appellant's written requested charge A was therefore properly refused.
A written charge which asserts no proposition of law may always be rightfully refused. Jones v. State, 174 Ala. 53, 57 So. 31; Lewis v. State, 178 Ala. 26, 59 So. 577. Appellant's requested charge B was of this character, and hence refused without error. Then, too, this charge was mere argument, and invasive of the province of the jury.
Written refused charges which we have numbered A(1) and B(1), requested by appellant, are each subject to the same vices as those discussed with reference to charge B above. And we might say in addition that our Supreme Court, while admitting that such charges, i.e., what are known as "no evidence" charges, may, and sometimes, perhaps, should, be given, has held definitely that a judgment will not be reversed on account of the refusal of such a charge. See Carraway v. Graham, 218 Ala. 453, 118 So. 807.
Appellant's refused charge 1 was fully covered by the Court's oral charge.
There is no prejudicial error, and the judgment is affirmed.
Affirmed.