Opinion
7 Div. 229.
November 2, 1922.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Hood Murphree, of Gadsden, for appellant.
Count 4 shows no causal connection between the negligence and the injury complained of, and the demurrers to that count were improperly overruled. 96 Ala. 612, 11 So. 774; 201 Ala. 553, 78 So. 907; 6 Mayf. Dig. 669. The question propounded by plaintiff to Dr. Guice called for an opinion as to the probabilities of a probability, and its allowance was error. 125 Ala. 585, 28 So. 40. The trial court erroneously charged the jury that it was the duty of the street car company to wait a reasonable time for passengers to board the car and to procure a seat thereon before starting. 153 Ala. 87, 44 So. 983, 16 L.R.A. (N.S.) 1077.
Disque Disque, of Gadsden, for appellee.
Count 4 was not subject to defendant's demurrer. 123 Ala. 233, 26 So. 349; 146 Ala. 207, 40 So. 205, 3 L.R.A. (N.S.) 822. The answer of the witness Dr. Guice to plaintiff's hypothetical question was favorable to defendant, and if there was error in overruling objection to the question, it was harmless. 128 Ala. 313, 29 So. 562; 197 Ala. 5, 72 So. 325; 201 Ala. 403, 78 So. 401; 202 Ala. 246, 80 So. 84; 194 Ala. 273, 69 So. 926. There was no error in the charge on the time to be allowed passengers to board street cars. 4 Ala. App. 363, 59 So. 66; 136 Ala. 166, 33 So. 886; 16 Ala. App. 188, 76 So. 472; 153 Ala. 57, 45 So. 230.
In Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 So. 349, a complaint substantially, if not literally, like the complaint here exhibited, was held sufficient as stating a cause of action for negligence, and not subject to demurrer on account of the generality of its averments of negligence. On that authority we hold that the demurrers were properly overruled.
If it be conceded that the form of the question to Dr. Guice, calling for his opinion as to the "probabilities" of plaintiff being "probably injured for life," was bad (though we think the awkward redundancy of terms was not intended to call for the probability of a probability, but only for the witness' opinion as to the probable permanence of the injury), yet the answer was not responsive to the form of the question, and the answer being unobjectionable with respect to the criticism visited upon the question, and being also rather favorable to defendant, we cannot find any basis for the assignment of prejudicial error.
There was testimony tending to show that, after plaintiff got on the car, she remained standing in the vestibule, near the motorman, and was holding onto one upright iron rod, and that when the car started on the conductor's signal he had observed her so standing, and that she then took hold of the other rod with her other hand. Under those circumstances, there was nothing to indicate to the conductor or the motorman that starting the car in the usual way would be dangerous to plaintiff's safety. With respect to street cars:
"As a general rule it is sufficient, as regards a boarding passenger, that the car is held stationary until he has reached a place of safety on the car, and hence, although a contrary rule has been stated, it is generally held that it is not necessary to hold a car until a passenger is seated, and that the carrier is not liable for injuries sustained by a passenger while in the act of taking a seat, in consequence of the starting of the car, unless it is started in a violent, unusual, or reckless manner, or unless the unusual conditions and circumstances surrounding a particular passenger, as in case of an enfeebled or infirm passenger, require that the car be held until he is seated." 10 Corp. Jur. 947, § 1366.
To this effect the authorities are numerous and convincing, and the rule above stated was discussed and approved by this court in the case of Birmingham R., L. P. Co. v. Hawkins, 153 Ala. 86, 44 So. 983, 16 L.R.A. (N.S.) 1077. The reason for the rule is well stated by the Michigan court in Ottinger v. Detroit, etc., R. Co., 166 Mich. 106, 131 N.W. 528, 34 L.R.A. (N.S.) 225, Ann. Cas. 1912D, 578:
"So common and unavoidable is the overcrowding of street cars that straps are usually provided, and, if these cars could not lawfully be started until all passengers were seated, or if acceleration of and checking speed could not be prompt, the efficiency of such cars would be seriously impaired."
In Birmingham R., L. P. Co. v. Hawkins, supra, it was said:
"The cases agree that it is negligence to start the car while the passenger is in the act of stepping onto the car, and, on the other hand, they hold that there is no obligation to keep the car standing until the passenger has taken his seat. * * * From these and other cases, it seems that under ordinary conditions, unless some special circumstance requiring greater caution is brought to the attention of the motorman or the conductor, the passenger is considered to have reached a place of safety when he or she has gotten on the car."
No unusual circumstance appeared with respect to plaintiff's physical efficiency, or her position while standing in the vestibule of the car, and defendant's testimony tends to show that the car started without any jerk or other unusual movement. In this state of the evidence, we think it was prejudicial error for the trial judge to instruct the jury that it was defendant's duty to allow passengers "a reasonable time to board the car and to procure a seat thereon."
For this error the judgment must be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.