
    Birmingham Ry. L. & P. Co. v. Moore.
    
      Injury to Passenger.
    
    (Decided May 13, 1909.
    Rehearing denied June 30, 1909.
    50 South. 115.)
    1. Carriers; Injury to Passengers; Instructions. — An instruction that plaintiff would be entitled to recover if the car was negligently started, fails to hypothesize that the starting of the car was the proximate cause of the injury, and its giving was erroneous.
    2. Sam.e. — Where the action was for injuries to a passenger alighting from a starting car, an instruction predicated upon increasing the speed of the car was properly refused as inapplicable.
    3. Same; Jury Question.- — -If the motorman of defendant saw that plaintiff whs alighting and started the car with a jerk and injured plaintiff, it was for the jury to determine whether the starting of the car was wanton.
    4. Charge of Court; Oral Charge; Construction. — The oral charge of the court must be construed as a whole.
    Appeal from Jefferson Circiut Court.
    Heard before Hon. A. O. Lane.
    Action by Nettie Moore against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    The complaint consists of three counts — the first, in simple negligence of the defendant’s servants or agents in control of the car in the negligent manner in which they ran or operated the same; the second, in wanton or willful injuries for starting the car while plaintiff was in the act of alighting, knowing that the plaintiff was in the act of alighting and liable to be injured; the third, in wanton or willful injury generally stated. The charges are sufficiently stated in the opinion of the court, with the exception of charge 5, which is as follows: “Unless yon are reasonably satisfied from the evidence that the speed of the car was suddenly increased as plaintiff attempted to alight, and that this was negligently increased, then you cannot find for the plaintiff under the first count of the complaint as amended.”
    Tillman, Grubb, Bradley & Morrow, and L. O. Leadbeater, for appellant.
    The oral charge of the court was erroneous. — Birmingham By. L. & P. Go. v. Jones, 146 Ala. 277; Huggins’ Case, 148 Ala. 153. ¡Counsel discuss the other assignments of error, but without citation of authority.
    Frank S. White & Sons, for. appellee..
    The oral charge of the court must be construed as a whole.- — Decatur G. W. Go. v. Mehaffey, 138 Ala. 242; 132 Ala. 32; 128 Ala. 242. So construed, the charge was not erroneous. — Mobile L. & B. B. Go. v. Walsh, 146 Ala. 295; Matthews v. K. G. M. & B., 142 Ala. 298; Sweet v. Bvr. B. & E. Go., 136 Ala. 166; Nellis St. Ry. Acci. Law, pp. 110, 111, and 480. The court properly refused charge 2 requested by the defendant. — Posiai Tel. Go. v. Jones, 133 Ala. 228; Bvr. B. & E. Go. v. Mullin, 138 Ala. 614. On these same authorities, the court properly refused other charges by -the defendant.
   SIMPSON, J.

This action was brought by the appellee against the appellant for damages resulting from an injury claijned to have been received by the plaintiff,' who was a passenger on defendant’s railway, in the city of Birmingham.

The first assignment of error insisted on is to that part of the oral charge of the court as follows, to wit: “I charge you, further, .if you believe, from the evidence, that the car had been stopped, and that the plaintiff was in the act of alighting, and the motorman knew, or by the exercise of reasonable care would have known, that she was in the act of alighting, and that he negligently started the car with a sudden jerk or start, then she would be entitled to recover.” This part of the oral charge was erroneous, in failing to hypothesize that the starting of the car by the motorman was the proximate cause of the injury received by the plaintiff.—Birmingham Railway, Light & Power Co. v. Jones, 146 Ala. 277, 284, 41 South. 146; Huggins v. Southern Railway Co., 148 Ala. 154, 166, 41 South. 856. While it is true that the oral charge of the court must be considered as a whole, yet the oral charge was in the shape of separate distinct legal propositions, laid down for the guidance of the jury, and this part of the charge purported to state a distinct legal proposition in itself; and we cannot see that the other parts of the charge were so connected Avith or referable to it as to relieve it from this error.

The second assignment of error insisted on is the refusal of the court to give the charge requested by the defendant, as follows, to wit: “I charge you that you cannot award the plaintiff any damages for the purpose of punishing the defendant.” There Avas no error in refusing this charge. The plaintiff testified that, just as she was placing her foot on the steps to alight, the motorman looked over his shoulder at her, and the conductor rang the bell, and the motorman started the car with a jerk. If the motorman did see her in the act of alighting, and started the car with a jerk, and she was thereby injured, it was a question for the jury to determine whether the starting of the car was wanton.

The third assignment of error is to the refusal to give the charge: “If you believe the evidence, you cannot find for the plaintiff under the second count of the complaint as amended.” The bill of exceptions does not sIioav that any such charge was requested.

The court properly refused charge 5, requested by the defendant. There was nothing in either the pleading or evidence basing any claim on “increasing the speed” of the car (which implies that it was already in motion), but the claim was that the car “started” with a jerk.

The judgment of the court is reversed and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and Denson and Mayfield, JJ., concur.  