At a former day of this term this case was reversed and remanded on account of supposed errors of the court in refusing a special charge and permitting the introduction of certain evidence. Appellee, in his motion for rehearing, has submitted for our consideration a very full and able brief and argument, urging that the court erred in sustaining appellant's assignments relative to the two matters hereinafter discussed.
The special charge requested by the defendant, which we held in our original opinion should have been given, is fully set out therein, and it is not necessary to repeat it here. The appellee contends that the court's charge on this subject was as full as the law required, and more favorably presented the issue of plaintiff's contributory negligence than did the special charge referred to.
After a more mature consideration of this subject we are inclined to believe that appellee is correct in this respect, and that the main charge was sufficient. The court in its main charge told the jury that, "if you believe from the evidence that the plaintiff was guilty of negligence in attempting to alight from the train while the same was in motion, at the time and under the circumstances; or if you believe he was guilty of negligence in the manner in which he got off the train; or if you believe that he held on to the caboose for too great a length of time, or that he failed to observe where he was stepping or what he was doing; and if you further believe that he was guilty of negligence in either or any of such particulars, you will find for the defendant." By its answer defendant had raised the issue of contributory negligence on the part of plaintiff in failing to observe where he was stepping while alighting from the train. By the special charge the jury were not only required to believe that the plaintiff failed to look where he was stepping, but it also required the jury to believe that he was looking at the brakeman on the platform, before they could find for the defendant on this issue, thereby imposing a greater burden than the law really required; because, if plaintiff failed to observe where he was stepping when alighting from the caboose, and the injury was caused by reason thereof, it was immaterial where or at whom he was looking. If the special charge was incorrect in any particular, or if the same had already been given in the *Page 475 main charge, the court was not required to give the same. We therefore hold that there was no error in refusing to give said special charge.
We also held in the original opinion that the court erred in permitting the plaintiff to show, upon cross-examination of the defendant's witnesses Quigley and Alston, that it was the usual custom of defendant's conductors, upon their arrival at the depot at Hughes Station, for the purpose of registering their trains, to alight therefrom in passing said station while the same was in motion. We are inclined to believe that we were in error in so holding, because the evidence disclosed that there was a custom on the part of appellant's conductors to alight from moving trains while passing said station, for the purpose of registering the arrival of said trains at said station, registering their arrival being a duty required of them at this place, for it would seem that if the company, with the knowledge of their mode of performing this service, acquiesced therein, that then it was competent to show what was the custom of performing such duty or service at Hughes Station by their conductors generally. And certainly the company in this case, by their acquiescence in this manner of performance of such duties by their servants, where the same had grown into a custom, would owe them the duty of exercising ordinary care to see that its platform was free from such obstructions as might necessarily interfere with the performance of such duty in accordance with such custom so acquiesced in by them; and the evidence would therefore be admissible on this branch of the case.
But, apart from whether we were right or not in this respect, it appears, upon a reinvestigation of this matter, that the record discloses that another witness, Pomeroy, was allowed to testify, without objection on the part of defendant, to similar facts relative to the custom of appellant's conductors in alighting from their trains while in motion to register the arrival thereof at said station, which fact was heretofore overlooked by us; so that if the evidence of Alston and Quigley was objectionable, as urged by appellant, still, having permitted another witness, as above shown, to testify without objection to similar facts, the error, it seems to us, in admitting same, was thereby rendered harmless, and appellant can not now complain thereof. So believing, we hold that it was not error to overrule defendant's objection to said testimony.
These being the only assignments of errors on the part of appellant which were sustained in the original opinion, the others all having been overruled, and believing now that we were in error in our former holding upon these questions, appellee's motion for rehearing is hereby granted.
We find that the evidence is sufficient under the pleadings to sustain the judgment upon the issue of defendant's negligence, as submitted under the charge of the court, and the issue of contributory negligence on the part of plaintiff, which was fairly submitted by the court, is not sustained by the evidence. We find that, under the facts of this case, the verdict of the jury is not excessive. We are therefore constrained to believe that no error has been shown in the proceedings of the court below, and its judgment is therefore affirmed.
Motion for rehearing granted; judgment below affirmed.
Writ of error refused. *Page 476