CARRIER.-A Passenger Riding on the Platform of an electric car, with packages in her hand, and not holding or supporting herself with either hand, is not negligent as a matter of law. (p. 24.)

CARRIER-Passenger Alighting Before Stopping Place.-A carrier is not relieved from liability to a passenger alighting while the car is in motion, because the crew did not know that she intended to alight before reaching the usual stopping place. (p. 24.)

Action by Girod against the Birmingham Railway, Light and Power Company. From a judgment for the plaintiff, the defendant appeals. The complaint alleged damage as follows:

"She was caused to fall with great force and violence, and thereby received internal injuries to her body, and was greatly shaken up, and her nervous system greatly shattered and impaired, and she was for a long time wholly confined to her bed, and permanently injured, and plaintiff was put to great expense for medicine, medical care and treatment, in and about his efforts to heal and cure the wounds and injuries of his said wife, and was deprived of and lost the services and society of his said wife, and suffered great mental and physical pain.'

The following is the second plea: "Defendant for answer to each count of the complaint separately and severally, says that the plaintiff's wife was herself guilty of negligence which proximately contributed to her injuries, in that she rode on the platform of defendant's car while it was in motion, in violation of a rule of the defendant published in the car in which the plaintiff was riding as a passenger at the time of her injury in such a way that the plaintiff, by the exercise of reasonable care, could have seen before riding on the platform."

These instructions were refused to the defendant: (1) "If the jury believe from the evidence that the plaintiff's wife voluntarily stepped from defendant's car while it was moving, and before it had reached its regular stopping place, of which fact she was aware, and if the jury further believe that when she so stepped from the car it was dark, and she had a can in one hand and a package in the other, then plaintiff's. wife was guilty of negligence." (2) "If the jury believe from the evidence that plaintiff's wife voluntarily stepped from defendant's car in the dark, and while it was moving, and before it had reached its regular stopping place to dis-charge passengers, and that she had a can in one hand and a package in the other, plaintiff's wife was guilty of contributory negligence." (18) "If the jury believe from the evidence that plaintiff's wife consciously and purposely stepped from the car she was riding on in the dark, and while it wasmoving, and that this proximately contributed to her injury, the jury must find for the defendant." (20) "If the jury believe from the evidence that the plaintiff's wife voluntarily,.

and while encumbered with a can and in the dark, stepped from defendant's car while it was in motion, and that her doing so proximately contributed to her injuries, the jury must find for the defendant." (10) "If the jury believe from the evidence that the plaintiff's wife, at the time of the accident, was on the platform of defendant's car while it was moving, with a can in one hand and a package in the other, and without holding or supporting herself with either hand, the jury must find that she was guilty of negligence." (15) "It was not the duty of the conductor to know before increasing the speed of the car that the plaintiff's wife was not in a position of peril from such increase of speed, if at the time the speed had increased the car had not reached its regular stopping place for the discharge of passengers." (16) "The calling of the name of the station in the car by the conductor would not be an invitation to plaintiff's wife to alight until the car had come to a stop after the name of the station was called." (19) "If the jury believe from the evidence that the conductor called the name of the station as the car approached it, still the plaintiff's wife would not have been justified in alighting from the car while it was in motion, and before it had reached its regular stopping place for discharging passengers." (21) "If the jury believe from the evidence that the defendant's car had not reached the usual place for discharging passengers when plaintiff's wife tried to get off the car, and if the jury further believe from the evidence that the crew of the car did not know that she intended to alight before reaching the usual stopping place until after the acci dent, the jury must find for the defendant."

Tillman, Grubb, Bradley & Morrow and L. C. Leadbetter, for the appellant.

Stallings & Drennen, for the appellee.

15 MAYFIELD, J. This is an action by plaintiff, as a husband, for lost services due to a personal injury received by his wife, while a passenger on defendant's electric car, in being thrown from it, while alighting at her destination, by a sudden starting or increase in speed of the car. The complaint originally consisted of three counts. The third was withdrawn by amendment. Each count charged simple negligence only.

Defendant filed six special pleas of contributory negligence. Demurrer was sustained to the second plea, charging plaintiff's wife with negligence in riding on the platform, in violation of defendant's rule published in the car. The rulings on demurrers to the complaint are not insisted on. The remaining special pleas, demurrers to which were overruled, charged contributory negligence in riding on the platform without

properly holding on, and in alighting from the car, in the dark, and encumbered with bundles, while it was in motion.

16 Plaintiff's evidence tended to show that his wife was a passenger from Birmingham to Ensley on defendant's electric car, and her destination was Nineteenth street and Avenue E, Ensley, which was the terminus of the car line; that when the car approached the terminus the conductor called out, "Ensley," or "All out for Ensley," after the car stopped, and she arose from her seat and went to the rear of the car, together with other passengers, to alight, and was the last one to alight; that while on the platform, in the act of alighting, with a gallon can of milk in her hand, and not holding on, the car started with a sudden jerk and threw her to the ground; that she heard the conductor ring the bell to start, he being on the inside; that she was first taken to the hotel at Ensley, near the terminus, and thence in an ambulance to her home; that on the way to her home in the ambulance she lost her voice, and had since been unable to speak above a whisper; that her vision was also injuriously affected after the accident; that she remained confined to her bed for months; that her hip was fractured, and she could only walk on crutches up to the time of the trial, and that she had broken ribs; that the plaintiff had employed Dr. W. H. Wynne, Dr. B. G. Copeland, Dr. Heacock, and Dr. Manning Brown, of Hopkinsville, Kentucky, where he had sent his wife for treatment, to treat her, and had also paid doctor's bills to each in amounts testified by him, and had paid nurse's wages and his wife's railroad fare from Birmingham to Hopkinsville, Kentucky, and return, when she went there for treatment (record pages 14 and 15); that Dr. Manning Brown had never treated her before the accident; that plaintiff had to hire a cook after the accident, to whom he paid three dollars a week and board; that he paid the nurse wages, and also furnished her with shoes, clothing and medicine as part of her wages, and with board. There was no evidence 17 introduced as to the reasonableness of the amount paid the doctors, nurse and cook. The evidence is set out in full, except the doctors', and on page 30 of the record is a recital in the bill of exceptions that the testimony of the doctors not set out in extenso related to the plaintiff's wife's condition and the extent of her injuries, "but to no other facts bearing on any of the issues involved, and whose evidence is not for that reason set out in extenso in the bill of exceptions." The evidence of the physicians was of great length, and for that reason, and the additional reason that the extent of plaintiff's wife's injuries is only involved in the exception based on the motion for a new trial because of excessive damages, which is not insisted on, was set out in full.

Defendant's evidence tended to show that the plaintiff's wife attempted to alight before the car reached its usual

stopping place for discharging passengers, and while it was moving; that it was dark, and that she had bundles in one hand and a can in the other; that she stepped off of her own accord and fell, the car not stopping till it reached the usual stopping place for discharging passengers; that the conductor called, "All out for Ensley," while the car was still in motion, and that it did not come to a stop after he announced the name of the station and until after the plaintiff's wife had fallen; that the car plaintiff's wife was riding on was following another car, and would slow up to permit it to get far enough ahead, and then start again forward, but never did. come to a stop till it reached the terminus, where passengers were accustomed to get off. The evidence of the defendant also tended to contradict the alleged serious character of the plaintiff's wife's injuries.

The action being that of the husband, the measure of damages was for loss of his wife's services and society.

18 Plea 2 was insufficient in that it failed to show that the passenger had notice, actual or constructive, of the rule set up as a defense, and it does not sufficiently allege a causal connection between the violation of the rule and the injury alleged in the complaint. It may be there was an attempt to conform the pleas to these requirements. They were insufficient, and the demurrer was therefore properly sustained.

The allegations of the complaint were sufficient, as to the character and extent of the injuries received by the passenger, to allow evidence as to the loss of voice in consequence of the injuries, though the loss of voice is not specifically alleged. It is not required to aver in specific terms each injury or pain suffered. The injury, its character, nature and extent, may be sufficiently averred, without detailing, enumerating or specifying each separately. The loss of voice might well be included in some of the injuries alleged. The loss of the wife's voice was certainly an element of the damages suffered by the husband in consequence thereof. If the complaint was too general in its averments as to the nature, character or extent of the injuries suffered and complained of, the defendant should have had this corrected by a demurrer to the complaint: City D. Co. v. Henry, 139 Ala. 161, 34 South. 389, 16 Ency. of Pl. & Pr. 377-383, and notes. See, also, Curran v. Strange, 98 Wis. 598, 74 N. W. 377.

If there was error in overruling defendant's objection to the question, "What was the fare to Hopkinsville, Kentucky?” it is not made to appear. We can see no objection to the question itself. The apparent answer to it might or might not be competent or relevant evidence, depending upon other evidence or other facts necessary to make it relevant or irrelevant. The objection to this question was not followed up by objec

So far as ap

tions 19 to or motions to exclude the evidence. pears, the defendant may have waived the error, if error it could be, or consented to the answer. The only insistence made is that it was not shown to be necessary: Sanders v. Knox, 57 Ala. 80.

Charges 1, 2, 18 and 20, each, as appellant admits, asserted, in varying language the same proposition, that it was, as matter of law, contributory negligence on the part of the passenger in this case to step from the car voluntarily and consciously, encumbered with bundles, in the dark, and while it was moving, and had not reached the regular stopping place for the discharge of passengers. Each of these charges were refused to the defendant, and properly so. It may, or may not, be negligence for a passenger to step from a moving car or train in the dark, encumbered with bundles. This depends upon the kind of car or train, its construction, the speed of the car at the time, the size and character of the bundles, the condition of the passenger, age, health, etc., the place, time and occasion of alighting, etc. While some of these charges hypothesized some of the conditions which would make the passenger liable, no one of them hypothesized all. For example, suppose an ordinary electric car is slowing up to stop and is barely moving, and a passenger step off with some small bundles in his hand; can it be said, as matter of law, that this is contributory negligence? We think not. If so, nearly all who ride in such cars are uniformly guilty of contributory negligence. There may be some who do not. If so, they are the exception and not the rule. If the passenger be encumbered with heavy bundles, the car moving rapidly, he would be guilty of contributory negligence. It is the apparent danger of the act that renders it negligence. In the one case, the danger is apparent; in the other it is not, if 20 it exists at all. True, there are some cases holding that it is, as matter of law, contributory negligence to step off a car in motion, and especially so when encumbered with bundles; but we think the great number and weight of authority hold that such is not negligence as matter of law, but may be as a matter of fact, depending, of course, upon the circumstances of each particular case. There are, no doubt, many cases of the kind where the act can be, and has been, declared negligent as matter of law, but in most cases of the kind it is properly a question for the jury: Watkin v. Birmingham R. & E. Co., 120 Ala. 147, 24 South. 392, 43 L. R. A. 297. Such were the cases of Rickert v. Birmingham St. Ry. Co., 85 Ala. 600, 5 South. 353, and Hunter v. Louisville & N. R. Co., 150 Ala. 594, 43 South. 802, 9 L. R. A., N. S., 848.

We do not think the facts hypothesized brought the charges. within the rule announced in any of these two cases, declaring such acts or facts as matter of law are negligent: 4 Elliott on