Opinion
1 Div. 246.
June 7, 1923.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Harry T. Smith Caffey, of Mobile, for appellant.
The allegations of fact in the first count were wholly insufficient to show any duty owing to the plaintiff. The allegations that it was the conductor's duty to keep the car standing and the entrance open until plaintiff had entered, and that plaintiff was in the act of entering the car for the purpose of becoming a passenger, were mere conclusions of the pleader and added nothing. M. L. R. Co. v. Ellis, 207 Ala. 109, 92 So. 106; North Birmingham R. Co. v. Liddicoat, 99 Ala. 545, 13 So. 18; B. R., L. P. Co. v. Anderson, 3 Ala. App. 424, 57 So. 103; Smith v. B. R., L. P. Co., 147 Ala. 702, 41 So. 307; B. Ry. Elec. Co. v. Mason, 137 Ala. 342, 34 So. 207; Sou. Ry. v. Johnson, 144 Ala. 361, 39 So. 376, 113 Am. St. Rep. 48; B. R., L. P. Co. v. Elmit, 6 Ala. App. 653, 60 So. 981; B. R., L. P. Co. v. Littleton, 201 Ala. 141, 77 So. 565; Jefferson County v. Gulf Ref. Co., 202 Ala. 510, 80 So. 798. Before plaintiff can recover, he must show a duty owing to him; it is not enough that there is a duty owing to others. Sou. Ry. v. Drake, 166 Ala. 540, 51 So. 996; Sou. Ry. v. Stewart, 179 Ala. 304, 60 So. 927; Sou. Ry. v. Williams, 143 Ala. 212, 38 So. 1013. The second count was subject to the demurrers interposed. L. N. R. Co. v. Mitchell, 134 Ala. 261, 32 So. 735; Blackmon v. C. of Ga., 185 Ala. 635, 64 So. 592. The ex parte statement of the witness Lodge was mere hearsay, and was not competent as original evidence for any purpose. Culver v. Ala. Mid. R. R., 108 Ala. 330, 18 So. 827; Ala. City Ry. v. Appleton, 171 Ala. 324, 54 So. 638, Ann. Cas. 1913A, 1181; T. C. R. Co. v. Danforth, 112 Ala. 80, 20 So. 502; West Ry. v. Turrentine, 197 Ala. 603, 73 So. 40; L. N. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392; Robinson v. State, 14 Ala. App. 25, 70 So. 960. Charge 4 was erroneously refused the defendant. Munson S. S. Line v. Turner Co., 203 Ala. 690, 85 So. 4.
Stevens, McCorvey, McLeod Goode, of Mobile, for appellee.
If an error has intervened in any matter of pleading or procedure in any civil case, the judgment following will not, on this account, be reversed, unless the court be of the opinion, as a matter of fact, that this error has probably injuriously affected substantial rights of the parties complaining. Supreme Court rule 45 (175 Ala. xxi, 61 So. ix); Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Best Park Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929; Taylor v. Lewis, 206 Ala. 338, 89 So. 581. The erroneous overruling of demurrers to defective counts of a complaint is harmless error, where these counts were charged out of the case. Birmingham Bottling Co. v. Morris, 193 Ala. 627, 69 So. 85; C. of Ga. Ry. Co. v. Faust, 17 Ala. App. 96, 82 So. 36. A statement in writing made by a witness shortly after the accident which resulted in the injury complained of, which involves the witness in material contradictions is admissible in evidence. Porter v. L. N. R. R. Co., 202 Ala. 139, 79 So. 605; Stinson v. Faircloth-Byrd Co., 3. Ala. App. 607, 57 So. 143. An objection to a written statement as a whole without pointing out the objectionable parts is properly overruled, if any portion of such statement is admissible in evidence. Weaver v. State, 139 Ala. 130, 36 So. 717; Wright v. State, 136 Ala. 139, 34 So. 233; King v. Franklin, 132 Ala. 559, 31 So. 467; Longmire v. State, 130 Ala. 66, 30 So. 413; Edmondson v. Anniston City Land Co., 128 Ala. 589, 29 So. 596. A person attempting to board a street car, at a point at which such street car has come to a stop for the purpose of taking on passengers, with the intent to become a passenger, is a passenger. B. A. R. R. Co. v. Norris, 4 Ala. App. 363, 59 So. 66; Sweet v. B. Ry. Elec. Co., 136 Ala. 166, 33 So. 886; Ala. Mid. Ry. Co. v. Horn, 132 Ala. 407, 31 So. 481; Montgomery Eufaula R. R. Co. v. Stewart, 91 Ala. 421, 8 So. 708. It is the duty of the operator of a street railway car, when signaled to stop, not only to stop a reasonable time for passengers to enter the car, but to see and know, before starting again, that no one is in the act of alighting or entering the car, or in any other perilous position. Birmingham U. Ry. Co. v. Smith, 90 Ala. 60, 8 So. 86, 24 Am. St. Rep. 761; B. L. P. Co. v. Lee, 153 Ala. 79, 45 So. 292. Philadelphia Rapid Transit Co. v. Alcorn (C.C.A.) 266 Fed. 50.
Following remandment on former appeal ( 207 Ala. 109, 92 So. 106) the reconstruction of the complaint appears to have been undertaken with the view to obviate the defects then pointed out. It is insisted for defendant (appellant) that faults in the complaint, heretofore adjudicated, still persist.
It appears from the averments of amended count 1: (a) That the defendant was a common carrier of passengers over the line of railway described therein; (b) that a regular stopping place on the line was at the intersection of Wilson and Osage streets; (c) that a proper and customary signal was given the operators of the car to stop at such regular stopping place for the purpose of taking on passengers; (d) that said car overran the regular stopping place about two car lengths, where it was stopped "for the purpose of taking on passengers"; (e) that it thereupon became the duty of the conductor to exercise reasonable care to keep the car stationary, the entrance open, long enough to enable persons boarding the car to enter with safety; and (f) that, while plaintiff was in the very act of boarding the then stationary car, the conductor negligently suddenly closed the entrance door, thereby injuring plaintiff, who was then in the act of "reaching his right hand for the handrail at the entrance of the said car."
According to the facts averred the plaintiff was then due, from the carrier's representative, the care to which one is entitled who is in the very act of becoming a passenger on the carrier's invitation. 10 C. J. pp. 612-617, 622; 4 R. C. L. p. 1038; Nellis on Street Railways (2d Ed.) § 259; L. N. R. R. Co. v. Glascow, 179 Ala. 251, 258, et seq., 60 So. 103.
In the circumstances averred the carrier, through its employees, manifested the carrier's purpose to receive passengers at the point where the car was stopped — extended an invitation to that end; an invitation that the averments disclose was in fact fully accepted by another person closely behind whom the plaintiff moved to the entrance of the car. The fact that such other person alone signaled the car to stop did not, under the circumstances averred, restrict the invitation to that person, unless the unsound view should be sanctioned that only those signaling the stopping of a street car at a regular stopping place for the reception of passengers were or could be within the purview of the thus manifested invitation of the carrier to become a passenger. Where such an invitation as that described in count 1 to take passage is extended, and the relation of the person to the carrier's car or cars is as the facts averred in count 1 disclose, it is a primary duty of the operative or operatives in charge of the carrier's car or train to exercise reasonable care and diligence to see that no person, in the actual process of accepting such invitation in the usual way, is so related to the car or train as that, if it were without warning moved, or entrance thereto without notice closed, the intending passenger would likely be injured, or his entry denied or obstructed. Sweet v. B. R. E. Co., 136 Ala. 166, 33 So. 886; Highland Ave. R. R. Co. v. Burt, 92 Ala. 291, 295, 296, 9 So. 410, 13 L.R.A. 95, approving, after ample statement of pertinent doctrine, the excerpt from the instructions reproduced on pages 292, 293, of 92 Ala. (9 So. 410, 411).
The facts averred in count 1 invoke the application of the stated rule of primary duty, thereby imposing upon the conductor the duty alleged in the count, and, in consequence, justifying the pleader's averment therein asserting and characterizing the conductor's obligation in the premises in the manner and form set forth in the count. A count is never faulty as averring a conclusion of the pleader if, as here, from the facts averred, the law itself ascribes to the party or to the operative charged the duty alleged. The court did not err in overruling grounds 3, 4, and 5 of the demurrer to count 1.
Grounds 1 and 2 of the demurrer to count 1 proceed upon theories that, to sustain, would have required an assumption contradictory of unequivocal effects the law attached to the allegations of fact set forth in the count. It is expressly averred in the count that the car was stopped "for the purpose of taking on passengers" at the distance of two car lengths beyond the regular stopping place.
The sixth ground of demurrer, if anything more than general (Code, § 5340), was designed to express a view opposed to the stated rule of primary duty under the facts alleged in the count.
Count 1 was not subject to any ground of demurrer interposed to it, to which, of course, the review on this aspect of the case is confined. The rulings on demurrers to the second count introduced no reversible error. The cases relied upon as supporting theories proposed by the demurrers are to be discriminated by reference to the materially different averments, facts, and circumstances presented for review. To illustrate: In the Liddicoat Case, 99 Ala. 545, 548, et seq., 13 So. 18, the complaint, quoted in the opinion, averred no fact that disclosed an invitation to that plaintiff to become a passenger.
The court instructed the jury to the exclusion of the issue predicated on the plea of the statute of limitations of one year, and, refused defendant's request for instruction that would have concluded plaintiff's right to recover under counts added by amendment; this on the theory that the original complaint, considered on former appeal ( 207 Ala. 109, 92 So. 106) did not state a cause of action; was so fundamentally faulty as that it would not have sustained a judgment, by default or otherwise. Only the writer of the opinion on former appeal entertained the view that count 2 (there considered) failed "to state a cause of action"; whereas the other justices passing upon that appeal rested their conclusion upon error in overruling demurrer to the count. The count was simply a defective statement of a good cause of action. There is, of course, a material difference between a defective statement of a cause of action and a statement of a defective cause of action. The count (2) treated on former appeal was of the former class. The perfection of the plaintiff's complaint against the defendant arising out of the same event or transaction, through the introduction, more than one year after the injury, by amendment, of counts 1 and 2, set forth in the statement of the case, was effectual, under the provisions of Code, § 5367, to avert the running of the statute of limitations placed; and the court properly so advised the jury. Assignments of error 9 and 10 are without merit.
No exception appears to have been reserved to the matter quoted in the seventh assignment from the oral charge of the court; so that assignment presents nothing for review.
The court refused this request of defendant for instruction:
"(X) The court charges the jury that, unless you are reasonably satisfied from the evidence that the proper and customary signal was given to those in charge of the said car to stop at the regular stopping place at Wilson avenue and Osage street for the purpose of taking of passengers, you cannot find a verdict for the plaintiff."
The plaintiff testified:
"I saw Mr. Rachels [who, later on this occasion, when the car overran the usual stopping place about 60 feet, was accepted as a passenger] give a signal at the regular stopping place for the car to stop. He walked out and stood by the line. That is the usual and customary signal."
This testimony tended to support the amended complaint's allegation:
"That then and there the proper and customary signal was given to those in charge of the said car to stop at said regular stopping place for the purpose of taking on passengers."
As appears from the averments of counts 1 and 2 of the complaint as last amended, as well as from the evidence, the cause and means of this plaintiff's injury were not at all related to the movement of the car before it stopped some 60 feet beyond the regular stopping place, but was referred and referable alone to what occurred after such stop, a point of time in which and an event out of which the negligence asserted in plaintiff's pleading and evidence could only have intervened. In the circumstances indicated, the requested instruction last quoted (X) if not otherwise faulty, possessed misleading quality in this: That it would have concluded against plaintiff's right to recover upon an hypothesis, predicated of a minor, relatively remote matter averred in the complaint, that was so unduly contracted as to exclude any recourse of reference to the gravamen of plaintiff's cause of action, as affirmatively averred in the amended complaint and as supported by tendencies of the evidence. Furthermore, the imputation of reversible error, because of the refusal of this request (X), could not be justified without exalting the stated averment of antecedent action, material in some senses, but relatively unimportant in respect of the real issue litigated, to a degree that would relegate the major issues actually contested to a status of minor consequence. In such circumstances a just application of rule 45 (175 Ala. xxi, 61 South. ix) requires the conclusion that no reversible or substantially prejudicial error was committed by the refusal of request X. The matter of averment treated in Munson Line v. Turner Co., 203 Ala. 690, 85 So. 4, to which the plaintiff failed to give any evidential support, was vitally material to the liability averred; and the fault there found, very different from that proposed in request X, was that, on the second trial, no evidence was presented efficient to support the material averment there recited.
The remaining contention for error arose from the admission in evidence, on plaintiff's cross-examination of defendant's witness Lodge, of a written statement signed by him. The only objection interposed was that the statement "was an unsworn statement, and irrelevant, incompetent, and immaterial." The court was not invoked to exclude any part of the writing that may or may not have been conceived to be inadmissible. It was not the primary duty of the court to separate the legal from the illegal (if so) in the writing. Comparing the witness' material testimony with material matter recited in the writing, it is clear that the writing carried terms that may well have involved inconsistency with or contradiction of the witness' testimony, and was, hence, admissible for whatever service the jury might find in it in passing upon the witness' credibility. The court instructed the jury that the writing could not be looked to "as evidence of what happened."
The errors assigned are without merit. The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.