HARALSON, J.
Conceding that there was error in allowing the witness for defendant, Askew, to answer the question, that it is a public rule to ring the bell of the car at a crossing, in order to stop the car, on the ground that it was not shown to have been the rule at the time plaintiff was hurt, the error was cured, by the witness answering another question, immediately propounded, in order to obviate the objection to his previous answer, “that it was the rule at the time plaintiff fell off the car, and had always been that way.”
The witness, Askew, was asked by defendant: “Did he (the plaintiff) ever request you to bring him down the line, and let him get off hi front of his place of business?” This witness was the motorman on the car, when plaintiff was hurt. It was shown, that the plaintiff’s place of business was on the car line below, west of the crossing at the Exchange Hotel, where he claims to have been hurt; and the evidence tended to show, that it was plaintiff’s habit to ride further down the street, in front of his place of business, before alighting, and had formerly requested the motorman to allow him todo so. Plaintiff testified, that the motorman saw him get up in the car, and go to the rear platform ; that he did not notify the motorman that he wished to get off at that place, except by getting up and pulling the door open, and that the accident happened at the exchange crossing, where the car had stopped, but not long enough for him to alight. On the other hand, the motorman, Askew, swore he did not see the plaintiff get up and go to the rear platform as if to get off at the crossing, but that, after other passengers had gotten off, at a switch before reaching the crossing, he saw plaintiff sitting in the car, which was the last he saw of him that day ; that he did not stop the car at the Exchange crossing, but passed it without stopping, and plaintiff did not ring the bell for him to stop. In this state of conflict in the evidence, the question was admissible to explain the action of the motorman in not stopping for plaintiff to get off at the crossing, even if he had seen him arise from his seat and go to the rear platform, as plaintiff swears the motorman did. If it was plaintiff’s habit to get off lower down the line, opposite liis place of business, the motorman could hardly be held to have known that morning, of plaintiff’s change of intention, to leave the car at [174]*174the crossing, without some notification, as by ringing the bell, or other indication of such a desire. For like reasons, the third and fifth assignments of error. — based on questions allowed to the motorman by defendant, as to plaintiff’s habit in getting off the cars below the crossing, and often having requested the motorman to allow him to do so, — were without merit. In passing upon the motorman’s negligence, vel non, it was proper to allow the defendant to show the prior conduct of plaintiff, which might have led the motorman reasonably to infer that he did not intend to alight at the crossing.
The charge requested by plaintiff and refused, was an improper instruction under the facts of this case. There was evidence tending, as has been stated, to" show plaintiff’s habit in going beyond the point where he met the mishap ; that the motorman did not know or have reason to believe that plaintiff desired to alight at the crossing, and that he had no signal from plaintiff to stop for him to get off at that point. Unless informed by signals or otherwise, the motorman was not bound to know that plaintiff desired to leave the car or wished to have it stopped ; and the mere fact, in the face of the alleged custom of plaintiff not to alight at the crossing, even if the motorman saw plaintiff arise and go to the rear, was not sufficient, without more, to fix on him the knowledge that plaintiff desired to get off at that place. lie might well have supposed, that this movement was but preparatory to getting off lower down, opposite his place of business. — Booth on Street Railways, § 337.
This case was tried,as to both its counts, on the double defense of not guilty and the plea of contributory negligence on the part of the plaintiff. The effect of this double defense, as we have held, was, under the one, that defendant denied all negligence on its part, and threw the burden of proof on the plaintiff. But as a further defense, under the other, the defendant setup, that if found to be guilty of negligence, plaintiff was himself guilty of negligence which contributed proximately to th.6 inj ury he received. If this latter defense is relied on, the burden is on the defendant to make it good. When such double defenses are interposed, that of contributory negligence is not in whole, nor to any extent an admission that defendant has been guilty of any negligence, and the case may be tried upon either, or both [175]*175lines of the defenses set up.—L. & N. R. R. Co. v. Hall, 87 Ala. 722; S. & N. A. R. R. Co. v. Schaufler, 75 Ala. 137; E. T. V. & G. R. R. Co. v. Holmes, 97 Ala. 332; Carter v. Chambers, 79 Ala. 229. And, if either defense is made out, the defendant is entitled'to a verdict. The plaintiff, as was said in the case last referred to, to make out his side of the case, must prove the defendant was guilty of some negligence, the proximate effect of which was injury to him. This will entitle him to recover, the defense of contributory negligence being relied on, unless it was shown the plaintiff was also guilty of negligence, which contributed proximately to the injury. Again, it has been said, that necessity has modified the rule last referred to in the case of a passenger on a railroad train, but not to the extent of entire exemption from the necessity to make a prima facie case of negligence. Proof of mere injury, without more, does not raise a presumption of negligence, sufficient to impose on the company the burden to prove due care on its part. In order to recover, it is incumbent on plaintiff to show an accident from which injury resulted, or circumstances of such character as to impute negligence.—B. U. R. Co. v. Hale, 90 Ala. 11. In still later adjudications on this subject, this rule as to the burden of proof is stated more fully, to which for the purposes in hand, we may properly refer. In Bromley v. B. M. R. R Co., 95 Ala. 403, after reviewing the authorities,some holding to a different rule, it was said : "In this State the rule is firmly established, that contributory negligence is matter of defense ; that it is incumbent on the defendant to plead it, and the burden rests on the defense to sustain the plea by proof, unless the evidence offered by the plaintiff in support of his case establishes contributory negligence' on his part, in which event it cannot be held that he has made out his own case. Contributory negligence being matter purely defensive under bur decisions, it must follow that there are no presumptions against a plaintiff of a.want of due care and diligence on his part, and that there is no burden on him to prove affirmatively that he exercised due care and diligence. The burden of contributory negligence resting on the defendant, it follows that when the proof shows injury, caused by the culpa-ple negligence of the defendant, and the proof is wholly silent as to contributory negligence, the plaintiff is entitled to recover.”
[176]*176In K. C. M. & B. R. R Co. v. Crocker,
Free access — add to your briefcase to read the full text and ask questions with AI
HARALSON, J.
Conceding that there was error in allowing the witness for defendant, Askew, to answer the question, that it is a public rule to ring the bell of the car at a crossing, in order to stop the car, on the ground that it was not shown to have been the rule at the time plaintiff was hurt, the error was cured, by the witness answering another question, immediately propounded, in order to obviate the objection to his previous answer, “that it was the rule at the time plaintiff fell off the car, and had always been that way.”
The witness, Askew, was asked by defendant: “Did he (the plaintiff) ever request you to bring him down the line, and let him get off hi front of his place of business?” This witness was the motorman on the car, when plaintiff was hurt. It was shown, that the plaintiff’s place of business was on the car line below, west of the crossing at the Exchange Hotel, where he claims to have been hurt; and the evidence tended to show, that it was plaintiff’s habit to ride further down the street, in front of his place of business, before alighting, and had formerly requested the motorman to allow him todo so. Plaintiff testified, that the motorman saw him get up in the car, and go to the rear platform ; that he did not notify the motorman that he wished to get off at that place, except by getting up and pulling the door open, and that the accident happened at the exchange crossing, where the car had stopped, but not long enough for him to alight. On the other hand, the motorman, Askew, swore he did not see the plaintiff get up and go to the rear platform as if to get off at the crossing, but that, after other passengers had gotten off, at a switch before reaching the crossing, he saw plaintiff sitting in the car, which was the last he saw of him that day ; that he did not stop the car at the Exchange crossing, but passed it without stopping, and plaintiff did not ring the bell for him to stop. In this state of conflict in the evidence, the question was admissible to explain the action of the motorman in not stopping for plaintiff to get off at the crossing, even if he had seen him arise from his seat and go to the rear platform, as plaintiff swears the motorman did. If it was plaintiff’s habit to get off lower down the line, opposite liis place of business, the motorman could hardly be held to have known that morning, of plaintiff’s change of intention, to leave the car at [174]*174the crossing, without some notification, as by ringing the bell, or other indication of such a desire. For like reasons, the third and fifth assignments of error. — based on questions allowed to the motorman by defendant, as to plaintiff’s habit in getting off the cars below the crossing, and often having requested the motorman to allow him to do so, — were without merit. In passing upon the motorman’s negligence, vel non, it was proper to allow the defendant to show the prior conduct of plaintiff, which might have led the motorman reasonably to infer that he did not intend to alight at the crossing.
The charge requested by plaintiff and refused, was an improper instruction under the facts of this case. There was evidence tending, as has been stated, to" show plaintiff’s habit in going beyond the point where he met the mishap ; that the motorman did not know or have reason to believe that plaintiff desired to alight at the crossing, and that he had no signal from plaintiff to stop for him to get off at that point. Unless informed by signals or otherwise, the motorman was not bound to know that plaintiff desired to leave the car or wished to have it stopped ; and the mere fact, in the face of the alleged custom of plaintiff not to alight at the crossing, even if the motorman saw plaintiff arise and go to the rear, was not sufficient, without more, to fix on him the knowledge that plaintiff desired to get off at that place. lie might well have supposed, that this movement was but preparatory to getting off lower down, opposite his place of business. — Booth on Street Railways, § 337.
This case was tried,as to both its counts, on the double defense of not guilty and the plea of contributory negligence on the part of the plaintiff. The effect of this double defense, as we have held, was, under the one, that defendant denied all negligence on its part, and threw the burden of proof on the plaintiff. But as a further defense, under the other, the defendant setup, that if found to be guilty of negligence, plaintiff was himself guilty of negligence which contributed proximately to th.6 inj ury he received. If this latter defense is relied on, the burden is on the defendant to make it good. When such double defenses are interposed, that of contributory negligence is not in whole, nor to any extent an admission that defendant has been guilty of any negligence, and the case may be tried upon either, or both [175]*175lines of the defenses set up.—L. & N. R. R. Co. v. Hall, 87 Ala. 722; S. & N. A. R. R. Co. v. Schaufler, 75 Ala. 137; E. T. V. & G. R. R. Co. v. Holmes, 97 Ala. 332; Carter v. Chambers, 79 Ala. 229. And, if either defense is made out, the defendant is entitled'to a verdict. The plaintiff, as was said in the case last referred to, to make out his side of the case, must prove the defendant was guilty of some negligence, the proximate effect of which was injury to him. This will entitle him to recover, the defense of contributory negligence being relied on, unless it was shown the plaintiff was also guilty of negligence, which contributed proximately to the injury. Again, it has been said, that necessity has modified the rule last referred to in the case of a passenger on a railroad train, but not to the extent of entire exemption from the necessity to make a prima facie case of negligence. Proof of mere injury, without more, does not raise a presumption of negligence, sufficient to impose on the company the burden to prove due care on its part. In order to recover, it is incumbent on plaintiff to show an accident from which injury resulted, or circumstances of such character as to impute negligence.—B. U. R. Co. v. Hale, 90 Ala. 11. In still later adjudications on this subject, this rule as to the burden of proof is stated more fully, to which for the purposes in hand, we may properly refer. In Bromley v. B. M. R. R Co., 95 Ala. 403, after reviewing the authorities,some holding to a different rule, it was said : "In this State the rule is firmly established, that contributory negligence is matter of defense ; that it is incumbent on the defendant to plead it, and the burden rests on the defense to sustain the plea by proof, unless the evidence offered by the plaintiff in support of his case establishes contributory negligence' on his part, in which event it cannot be held that he has made out his own case. Contributory negligence being matter purely defensive under bur decisions, it must follow that there are no presumptions against a plaintiff of a.want of due care and diligence on his part, and that there is no burden on him to prove affirmatively that he exercised due care and diligence. The burden of contributory negligence resting on the defendant, it follows that when the proof shows injury, caused by the culpa-ple negligence of the defendant, and the proof is wholly silent as to contributory negligence, the plaintiff is entitled to recover.”
[176]*176In K. C. M. & B. R. R Co. v. Crocker, 95 Ala.428, the question arose, “Does a statement of a cause of action, based upon the charge that the defendant was negligent, involve the assertion that no negligence on the part of the plaintiff proximately contributed to the injury of which he complains, so that a mere denial of the allegations of the complaint casts the burden on the plaintiff to show that he was not guilty of contributory negligence?” and it was said : “The onus in this regard is in all cases on the defendant, though plaintiff’s evidence sometimes relieves from the necessity of discharging it.—Ga. Pac. Railway Co. v. Davis, 92 Ala. 312. The defendant need not introduce evidence of a special plea, if the evidence introduced by the plaintiff has already established the defense. But the sources from which the evidence comes, does not determine that it was not purely defensive matter, and available only under a special plea, or that the burden to prove it was not on the defendant. The term, ‘'contributory negligence,’’instead of implying such a denial of the material allegations of the complaint, as is made by pleading the general issue, implies just the contrary. The theory of this special defense is, that the defendant was negligent, but that the negligence of the plaintiff conduced to the injury complained of. The defense is in the nature of a confession and avoidance. It may fully be made out, without denying a single allegation of the complaint. The pith of it is, that admitting that the defendant was negligent as charged, yet the plaintiff is not entitled to recover because his own negligence proximately contributed to the injury. The plea of contributory negligence standing by itself, admits the negligence charged in the complaint.” After referring to the rule as established in Massachusetts, that the plaintiff’s allegation that the injury happened in consequence of the negligence of the defendant, implies that there was no negligence on the part of the plaintiff which contributed to the injury, and throws upon him the burden that he was free from such negligence, the coui’t add, holding to a different doctrine: “It is now well settled in this State, that no such implication is involved in the plaintiff’s allegation that the defendant’s negligence caused the injury, and the burden is not primarily on the plaintiff to negative fault on his part.” The case of Govr. St. R. R. Co. v. Han[177]*177lon, 53 Ala. 70, holding to a different view, — tho one expressed by the Massachusetts court, — was overruled. Under the plea of the general issue, charges Nos. 1 and 2 for defendant, were not improper instructions. They were applicable to that line of defense.
We have referred to and collected our adjudications, to the extent we have, in order to bring them together, and apply them to the pleadings m this case.
That part of the mero motu charge of the court, given at length in the abstract was excepted to as a whole. It was not bad in all its parts. If the plaintiff had specified the objectionable parts and they were of any force, the court would have had the opportunity to change the charge so as to make it unobjectionable to him, and might have done so.
The 7th charge was, that “theplaintiff can not recover damages in this cáse, unless the jury believe from tho evidence, that his [plaintiff’s] injury was occasioned solely by the negligence or improper conduct of the defendant.’’ From what has appeared touching the plea of contributory negligence and in considering that line of defense, we are authorized to eliminate from the complaint, as immaterial, the averments, — from the first, count, — plaintiff “was exercising due care,” — and from the second, — “was using due care.” Under our rulings they do not change the burden of proof, and defendant, setting up and relying on the defense of contributory negligence, would be required to prove it, notwithstanding those averments in the complaint. Under the plea of not guilty, without other defense, the plaintiff having averred that the defendant was negligent and he was exercising due and proper care, this charge would not have been improper, for plaintiff would have been bound by the rules of evidence, to establish the averments of his complaint, which done, the injury would have been shown to have arisen solely from the negligence of the defendant. Precisely this defense was relied on here, and the evidence tended to show that defendant was guilty of no fault whatever. So, the charge was not improper on that phase of the case.—S. & N. A. R. R. Co. v. Schaufler, 75 Ala. 137, supra; E. T. V. & G. R. R. Co. v. Holmes, 97 Ala. 332, supra.
But the case having been tried on the other line of defense, — that of contributory negligence, as well as on [178]*178the plea of not guilty. — was the charge a proper one in respect to it? It is a familiar principle, that charges should have reference to the evidence-, and must be construed in connection therewith; and if a charge given, construed in connection with the testimony, is free from error, it will not be ground of reversal, even if it declare a rule which would not be correct, when applied to other supposed states of proof, or, as a universal proposition, it may be erroneous.—Carter v. Chambers, 79 Ala. 228; 1 Brick. Dig. 345, § 141. On the evidence, if the injury was occasioned by anything other than the negligence of the defendant, it arose from the contributory negligence of the plaintiff, and from nothing else ; and, if so, the jury were bound to find for the defendant, but if they did not so believe, then defendant was left as the sole agent in producing the injury. Under the evidence, it was the one way or the other. The defendant was wholly guilty of the negligence causing the injury, or the plaintiff’s negligence wholly contributed to it. There was no middle ground. There was no evidence of any concurring efficient causes, other than the ones put in operation by the defendant or by the plaintiff. Construed with reference to the evidence, said charge No. 7 for defendant was not an improper-statement of the law. Holland v. Tenn. C., I. & R. R. Co., 91 Ala. 455; C. & W. R'y. Co. v. Bradford, 86 Ala. 574.
Charge No. 3 at defendant’s request was not erroneous. The plaintiff testified that the car had stopped and he was standing on the last step, and was just in the act of getting off, when the car he was on started up violently, without any notice or warning of any kind to him, and with great speed, and threw him off, before he had time to catch the rail. On cross examination he testified,that when he went to get off the car,at the point he fell, “he stepped on the lower step, without having hold of the hand-rail or anything.” The motorman swore he did not know he was in that position; that the car was in good condition ; that plaintiff was the only remaining passenger in the car, and that it did not stop at the crossing. The witness for defendant, J. R. Sayre, swore to facts tending to show, that the car had passed the crossing and was in motion when .plaintiff fell. He stated that the first he saw of plaintiff was, that he saw him in the air falling, and just as he struck the ground, at a point forty [179]*179or fifty feet below tbe Exchange Hotel crossing, and tliab the car had slowed up, when plaintiff fell. Under these circumstances, said charge .was. proper, and contained a correct exposition of the law as applicable to the case.— Booth on Street Railways, § 341.
There was no error, under the plea of not guilty in giving charge 4. The complaint alleges, that plaintiff was not guilty of negligence, and exercised “all due and proper care, and that defendant carelessly and negligently, and without due warning to plaintiff caused said car to start off suddenly and rapidly, whereby plaintiff was thrown off and injured.” The proof showed, according to plaintiff’s account of the accident, that he did not have hold of the hand-rail while standing on the lower step, preparatory to alighting, and that there was unobstructed room on the other side, for him to have gotton off without danger of injury from the passing train, which he says caused him to halt on the lower step ; and according to defendant’s account of the case and proof, he attempted to alight while the train was in motion, without having given any signal to stop. Under the plea of contributory negligence also interposed in the case, the instruction in said charge was free from error.
From what has appeared, charges 5 and 6 for defendant were free from error. In Ricketts v. Birmingham St. R’y Co., 85 Ala. 604, we said, and generally very correctly, that stepping from a moving car without necessity, when injury is caused thereby, which could have been avoided by remaining on the car, — by the exercise of ordinary diligence, — is negligence, which will defeat a recovery because of prior negligence of the agents or servants of the company.—Cen. R. R. & B. Co. v. Letcher, 69 Ala. 106; Thompson v. Duncan, 76 Ala. 334. “When a passenger leayes a movingcar, he incurs more or less danger because he is affected by its momentum.
* * * As in boarding, so in alighting, the passenger assumes the risk of all injuries, caused by the ordinary momentum of the cars. Unless informed by signals or otherwise, the driver and conductor are not bound to know that a passenger expects to leave the car or wishes to have it stopped.” — Booth on Street Railways, § 337. These charges were in keeping with these principles.
[180]*180Wo find no error as assigned, and the judgment of the court below is affirmed.