Opinion
8 Div. 271.
November 25, 1920.
Appeal from Circuit Court, Morgan County; F. Lloyd Tate, Judge.
Eyster Eyster, of Albany, for appellant.
The court erred in allowing the amendment. Section 5367, Code 1907; 188 Ala. 278, 66 So. 16, Ann. Cas. 1916E, 900; 202 Ala. 62, 79 So. 458. The defendant was entitled to the affirmative charge, under the evidence in this case. 120 Ala. 543, 24 So. 955; 129 Ala. 561, 30 So. 571. Plaintiff was guilty of contributory negligence. 108 Ala. 237, 19 So. 309; 132 Ala. 431, 31 So. 523. Court should have given charge 2, 179 Ala. 282, 60 So. 262. Counsel discuss other charges, but without further citation of authority.
Callahan Harris, of Decatur, for appellee.
The amendment was proper. 4 Ala. App. 650, 58 So. 1004; 177 Ala. 106, 58 So. 330; 154 Ala. 580, 45 So. 686. Under no theory of the case was the defendant entitled to an instructed verdict. 170 Ala. 535, 54 So. 280; 181 Ala. 512, 61 So. 908; 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; 4 R. C. L. §§ 655-659; 136 Ala. 166, 33 So. 886; 186 Ala. 65, 65 So. 169; 16 Ala. App. 188, 76 So. 472; 196 Ala. 32, 71 So. 674; 121 Ala. 121, 25 So. 847; 136 Ala. 166, 33 So. 886. Counsel discuss other assignments of error, but without further citation of authority.
Appellee, suing as a passenger, recovered judgment against appellant on account of personal injuries alleged in her original complaint to have been inflicted by the negligent operation of one of appellant's trains at Albany, in Morgan county. More than a year after the commencement of the action plaintiff was allowed to amend her complaint so as to make it allege that her injuries were inflicted at Vinemont, in Cullman county. Defendant opposed this amendment in every possible way; the ground of objection being that it introduced a new and distinct cause of action.
Plaintiff's cause of action — that is, the injury on account of which she sued — could not have happened at both places, but it is possible that she suffered from similar accidents at both, and in the last-named event an action on one could not by amendment be converted into an action on the other. Under the statute of this state (section 5367 of the Code) amendments such as here proposed, amendments changing descriptive allegations of the complaint, must be allowed where the record itself does not clearly inform the trial court as to the identity or nonidentity of the new matter with the old, and any issue as to identity vel non must be submitted as an issue of fact to the jury, and so injustice to the party against whom the amendment is allowed will be avoided. Brown v. Loeb, 177 Ala. 106, 58 So. 330; Ala. Consolidated Coal Iron Co. v. Heald, 154 Ala. 580, 45 So. 686.
There was no reversible error in refusing charge 2 requested by defendant. The charge was verbally inaccurate, as the brief for appellee, plaintiff, points out; but, apart from that, the measure of diligence necessary to be exercised by defendant in caring for the safety of its passengers was correctly stated to the jury in charges 3 and 7 given on its request, and while the language of the charge in question, apart from its mere verbal inaccuracy, was taken from the opinion in B. R., L. P. Co. v. Barrett, 179 Ala. 274, 282, 60 So. 262, where it served to elucidate an antecedent definition of due diligence, without its antecedent context it tended to mislead the jury.
Charges 19 and 20, refused to defendant, omit the hypothesis of due care on the part of the conductor to ascertain whether passengers are getting on or off the train when he gives the signal for it to move. Merely placing himself in position is not enough. In that position he must exercise care to know whether passengers are about to get on or off.
The question whether plaintiff undertook to get on the train at a "regular place" was properly allowed in view of the fact that defendant had pleaded the general issue "in short by consent with leave to give in evidence any matter that would be a good defense if specially pleaded." Defendant was contending that plaintiff's negligence had contributed to her injury, and on this issue if not otherwise, she was properly allowed to show that she undertook to board the train at a regular stopping place, at a place where it was defendant's duty to look out for her.
No inference was to be drawn against the plaintiff by reason of the fact that she did not complain to the conductor of an occurrence of which, according to her version of the case, he was part and necessarily well informed. Moreover, defendant's conductor, to whom the question was addressed, denied that any such accident had happened or that he had ever heard of it until summoned to court. Upon the whole, then, we conclude that no such injury was done by the ruling against defendant's question, assignment 23, as would require a reversal.
Whether upon the whole evidence plaintiff should have been allowed to recover was a question for jury decision; that is, the evidence was in conflict.
Nor can this court predicate error of the action of the trial court in overruling the motion for a new trial. To what has been said above we may add that a mere preponderance of the evidence against the verdict, or that the verdict is not in accord with the conclusion this court would reach, if deciding upon the facts, will not suffice as a reason for ascribing error to the trial court in overruling the motion. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Home Telephone Co. v. Robertson, 167 Ala. 179, 52 So. 655.
Affirmed.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.