Birmingham Electric Co. v. Shelton

163 So. 633, 231 Ala. 110, 1935 Ala. LEXIS 351

Opinion

THOMAS, Justice.

The trial was had on count 1 of the complaint; and the overruling of demurrer thereto is assigned as error.

Count 1 alleged, among other things, that plaintiff was a passenger on a street car operated by the defendant on date of December 5, 1933, and at the place of her injury. The later averment of negligent operation while plaintiff was present on said street car will be taken with the former averment that plaintiff was a passenger on the car at said time and place. These averments show the duty defendant owed plaintiff at the time and place in question to exercise the highest degree of care and skill not to injure her as a passenger. The rule permitting generality of averment, in respects here pertinent, in complaints such as this, is stated .in Armstrong, Adm’x, v. Montgomery Street Railway Co., 123 Ala. 233, 26 So. 349; Dwight Manufacturing Co. v. Holmes, 198 Ala. 590, 73 So. 933; and Birmingham Electric Co. v. Shephard, 215 Ala. 316, 110 So. 604. The foregoing count (count 1) was in accordance with such rule and test of sufficiency.

When the whole of the general charge is considered, there was no error in that part of the charge to which exception was reserved. Moreover, defendant had requested and was given charge 4, which was warranted under the evidence adduced by plaintiff of the negligent moving of the car while plaintiff was attempting as a passenger to alight therefrom.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.