Opinion
6 Div. 684.
March 26, 1935. Rehearing Denied April 30, 1935.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Action for damages for personal injuries by W. M. Cardwell against the Louisville Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Louisville N. R.Co. v. Cardwell, 230 Ala. 561, 162 So. 318.
Chas. H. Eyster, of Decatur, and White E. Gibson, of Birmingham, for appellant.
A carrier of passengers is only liable for injuries to passengers which are caused by its negligence in failing to exercise the proper degree of care, skill, and diligence for such passenger's safety. Irwin v. L. N. R. Co., 161 Ala. 489, 50 So. 62, 135 Am.St.Rep. 153, 18 Ann.Cas. 772; L. N. R. Co. v. Bowen, 212 Ala. 690, 103 So. 872. Where injury results from contact with some obstruction or foreign body within the coach, the carrier is liable only when it is shown that the presence of such obstructions or foreign body was known to the carrier, or by exercise of reasonable care should have been known for sufficient time before the injury to enable it to remove it. Akin v. C. N.W. R. Co. (C.C.A.) 21 F.(2d) 1000; Hotenbrink v. Boston E. R. Co., 211 Mass. 77, 97 N.E. 624, 39 L.R.A.(N.S.) 419; Louisville N. R. Co. v. O'Brien, 163 Ky. 538, 174 S.W. 31, Ann.Cas. 1916E, 1084; Proud v. Phila. R. R. Co., 64 N.J. Law, 702, 46 A. 710, 50 L.R.A. 468, 469; Philadelphia C., C. St. L. R. Co. v. Rose, 40 Ind. App. 240, 79 N.E. 1094.
Ewing, Trawick Clark, of Birmingham, for appellee.
The question of negligence was properly submitted to the jury.
But a single question is presented for our consideration, Was it or not reversible error for the court to refuse to give to the jury at appellant's request the following written charge, to wit: "I charge you, gentlemen of the jury, if you believe the evidence in this case, you cannot return a verdict for the plaintiff" (appellee here).
It will suffice for us to merely state that the bill of exceptions shows that the "wire," which appellee (plaintiff) claimed caused his injuries, was introduced in evidence on the trial, and that the same is not sent up here. Neither do we find the piece of wire fully described in the testimony. Without this bit of evidence, we do not see how we could intelligently answer the question put to us. Code 1923, § 6438.
And perhaps we ought to add that our opinion is not changed by the recent decision of the Supreme Court in the case of Ensley Holding Co. v. Kelley, 229 Ala. 650, 158 So. 896, wherein the legal principles which seem to control here were rather exhaustively considered.
The judgment is affirmed.
Affirmed.