On careful scrutiny of the evidence in the record I am of the opinion that it is insufficient to authorize a submission of the question of negligence vel non to the jury.
The allegation of negligence was general but does not relieve the plaintiff from introducing sufficient evidence from which the jury would be authorized to find that the defendant was guilty of negligence that proximately caused the injury of which appellee complains.
Plaintiff was asked by his counsel to state what happened when he boarded the bus on the occasion in question, and answered: *Page 569 "Well, I boarded the bus at High and Ripley, and when I got my nickel in the slot the driver started off suddenly and threw me down, and my mouth and jaw hit the guard rail of the seat, knocking out three of my teeth, loosening them up where they had to be taken out, and fractured by jaw bone." His witness Cochrane, who saw him when he boarded the bus, was asked by plaintiff's counsel, "Just tell the jury what you saw, and what occurred," and answered: "Well, he just got on the bus, and when it started off, it started off that way, I know, before he was seated. I saw him scrambling around but I paid no attention to it. I walked away, had other things to attend to." "Q. Did the bus start off in an unusual manner? A. Well, ordinarily you drive up to the curb, then he just took on off, like most of them. I did not pay any attention to whether he fell or what happened to him or anything."
On cross-examination, this witness was asked, "This bus started off as it usually does, didn't it? and answered, "Yes sir." "Ordinary way they start off?" "Yes sir."
This condition of the record presents us with the problem of whether or not a sudden start of the bus, without more, under the conditions disclosed by the evidence, was negligence or was conduct from which the jury might infer negligence on the part of the driver of the bus. In Birmingham Railway, Light Power Co. v. Mayo, 181 Ala. 525, 61 So. 289, it was held that proof of a sudden jerk with consequent injury to a passenger was sufficient to authorize a submission of the question of negligence vel non to a jury, but we do not find that case helpful in the present situation.
The appellee testified that the driver started off suddenly and "threw me down" and appellee's witness Cochrane testified that the "bus started off as it usually did in the ordinary way." Can it be said under the circumstances existing that a sudden start of the bus in the ordinary way without more authorized submission of the question of negligence vel non to the jury? As I read the evidence it indicates nothing more than a mere loss of equilibrium and a fall as a result thereof. It is certainly consistent with that idea. A sudden movement of a bus is one of the usual incidents of travel which passengers must expect. The mere fact that a passenger is injured by a sudden movement of the bus that is being operated in the usual and ordinary way does not, of itself, make out a case of negligence which will render the bus operator liable.
The situation would be entirely different had there been a jerk or jolt that was unnecessarily sudden or violent. A sudden movement of the bus under this evidence is to be regarded as a usual and ordinary movement. The appellee does not complain of a jerk or of anything extraordinary.
In such circumstances it is my judgment that the evidence is insufficient to warrant a submission of the question of negligence, vel non, to the jury.
I have not overlooked the contention of the appellee that he had a cork leg and was limping on the occasion complained of and using a cane or stick. If it be assumed that the driver of the bus knew or was chargeable with notice that the appellee was limping on said occasion there is no evidence in the record, as I read it, from which the jury could infer that the driver of the bus knew that the plaintiff had a cork leg. Neither am I willing to affirm that it was negligent conduct on the part of the bus driver to cause the bus to move in the ordinary and usual manner even if it be conceded that such operation involved a sudden movement merely because it appeared that the passenger was limping; nor am I persuaded that the jury could have found that appellee would not have lost his equilibrium had he not been required to use a cork leg.
For the reasons stated it is my judgment that the affirmative charge requested by the appellant in writing should have been given and that the judgment appealed from should be reversed and remanded. *Page 570