Birmingham Ry. L. &. P. Co. v. Lee. , 153 Ala. 79 ( 1907 )

HABALSON, J.

— Demurrers to the first, third, fourth, and fifth counts Avere sustained, and these Avere afterAvards amended and demurrers overruled.

The first assignment of error is-, “that the alleged negligence of defendant is not alleged to have been the proximate result of the injuries to the plaintiff.” The ground of demurrer — the only one insisted on — is Avanting in intelligent merit, and it cannot be contended, that the negligence of the defendant “resulted” from the injuries to the plaintiff. If the averment had been, that the injuries of the plaintiff were not alleged to have been the proximate result of the negligence of defendant, a different and intelligent proposition would have been presented. The ground of demurrer, therefore, is without consequence.

The seventh count avers that a servant or employe of defendant, whose name is unknown to the plaintiff, who had.charge or control of said car, wantonly and recklessly or intentionally injured plaintiff. The words, “wantonly' or intentionally,” are general averments of wantonness and intentional injury, which were sufficient averments thereof. — Armstrong v. Railroad, 128 Ala. 244, 26 South. 349. The word, “recklessly,” as employed in connection with the others, is to be taken as expressing the same idea, or giving color to the wantonness alleged. — A. G. S. R. R. Co. v. Williams, 140 Ala. 237, 37 South. 255. If the count had averred that the act was done wantonly or recklessly, we would have had mere recklessness joined in the same count with wantonness or intentional injury of plaintiff, which conld not be done. — L. & N. R. R. Co. v. Orr, 121 Ala. 489, 26 South. 35. The count was sufficient. — M. & O. R. R. Co. v. George, 94 Ala. 216, 10 South. 145.

A demurrer was sustained to defendant’s third plea, because the averment was too general The plea sets up plaintiff’s contributory negligence, for that, “plaintiff negligently boarded or negligently attempted to board said car.” It should have set out the manner in which he boarded or attempted to board the car. .Whether a person is guilty of contributory negligence in getting on a slowly moving train, is a question for the jury and not a question of law for the court. — B. R. L. & P. Co. v. Willis, 143 Ala. 220, 38 South. 1016. Furthermore, defendant had the benefit, under its second plea, of whatever defence it could have claimed under the third plea.

Dorroughs, a witness for defendant, who was the motorman on the car, was asked by the plaintiff on the cross: “Don’t you know it is your duty to see that everybody there, ready to get on the car, gets on before yon start?” The defendant objected to the question, but assigned no grounds of objection. The witness replied that such was the duty of the motorman. Willfulness or wantonness was charged, and the evidence tended to show that plaintiff Avais in the act of boarding the train, and the motorman saw or could, with diligence, have seen, him in such an attempt, Avhen he started his car. It further tends to sIioav, that the motorman Avas actually notified of plaintiff’s physical infirmity and his consequent slOAvness of gait, and Avas requested by the son of plaintiff not to start the car until the plaintiff could get in. — M. & E. R. R. Co. v. Stewart, 91 Ala. 422, 8 South. 708.

The first charge for defendant Avas properly refused. It is not ahvays negligence for one to get on a moving car.. It is OAving to its speed and other considerations, and is a question generally for the jury to decide under all the evidence, and not a matter of law for the court. —M. & E. R. R. Co. v. Stewart, 91 Ala. 424, 8 South. 708; C. R. & B. Co. v. Miles, 88 Ala. 256, 6 South. 696; H. A. & B. R. R. Co. v. Burt, 92 Ala. 291, 9 South. 410, 18 L. R. A. 95.

The second charge was faulty. It limits the duty of the motorman to ascertain and know that before he started the car, no one was in the act of getting on the platform or steps of the car at the time he started it. If the passenger was in the act of getting on the car, even though he was not on the platform or steps, but simply had hold of the handles of the car, as the evidence tends to show was the case with- the plaintiff, the duty not to start the car was on the motorman to observe.

For like reasons, and from others that have appeared, the third charge was properly refused.

The fourth was the general charge on the seventh count of the complaint. We have already passed on that count and held it to be good. The evidence tended to sustain it.

The other affirmative charges for defendant were properly' refused.

The seventh charge was also properly refused. The failure of the crew to know that plaintiff was in the act of getting on, might be negligence of which the defendant could not avail itself, since the crew or some of them, were chargeable with the duty of knowing that no one was in the act of boarding or attempting to board the car before starting.

It was for the jury to determine whether the passenger acted as a reasonably cautious and prudent person would act, under like circumstances. — Watkins v. B. R. & E. Co., 120 Ala. 152, 24 South. 392, 43 L. R. A; 297.

We find no error in the record and the judgment below is affirmed.

Affirmed.

Tyson, O. J., and Anderson and McClellan, JJ., concur.