Opinion
7 Div. 5.
June 26, 1919. Rehearing Denied October 23, 1919.
Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.
London, Yancey Brower, of Birmingham, for appellant.
Riddle Ellis, of Columbiana, for appellee.
Plaintiff sued for damages on account of an alleged personal injury, charging with particularity in her complaint that "she was carried by the defendant as its passenger on one of said passenger trains from said Phœnix City to Smith Station, * * * and plaintiff avers that while she was in an effort to get off of said train at Smith Station, her destination, * * * the train was suddenly started with a quick jerk, and as a proximate consequence thereof she was caused to fall and be thrown," etc. The second count omitted the words "with a quick jerk." In all other respects it repeated the language of the first count quoted above. By the hypotheses of requested charges AA and 19 defendant, appellant sought to have the jury pass upon a strongly developed tendency of the evidence, which, if believed, would bring the plaintiff's case under the influence of Louisville Nashville v. Dilburn, 178 Ala. 600, 59 So. 438; Southern v. Morgan, 171 Ala. 294, 54 So. 626, and Louisville Nashville v. Lee, 97 Ala. 325, 12 So. 48. However, these charges did not predicate nonliability, but only that there was a variance between the complaint and the facts hypothesized. On the hypotheses of these charges there was a variance, and the plaintiff should not have been allowed to recover on her complaint. Central of Georgia v. McNab, 150 Ala. 332, 43 So. 222; Southern v. Hundley, 151 Ala. 378, 44 So. 195. "The plaintiff has elected to state his own ground of action, and if, in doing so, he has stated a particular fact, and by his mode of statement has inseparably connected it with the substance of the issue, so as to render proof of it essential, it is a misfortune of his own, which cannot be justly visited upon his adversary." South North Alabama v. Schaufler, 75 Ala. 136. Such was the case here, and these charges should have been given.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.
McCLELLAN and GARDNER, JJ., dissent.