"(72) If the defendant was free from fault in bringing on the difficulty, and the deceased was making an attack on him in the nighttime, and the attack was such as to create in the mind of a reasonable man the impression that it was necessary for him to shoot in order to save his own life, then you should find the defendant not guilty." which certain threats were used by defend- I was necessary for him to shoot in defense ant as to deceased's wife and all her family. of his own life, then you should acquit the Later on in the same day deceased, with his defendant. wife and stepson, came to the dwelling of defendant, and found defendant in his yard, where another altercation followed, in which deceased seems to have been the aggressor. Some of the evidence tended to show that deceased had his right hand in his pocket and in this manner advanced upon defendant, who was standing in the yard with one foot on the doorstep, whereupon defendant backed away several feet and fired three shots, when the two engaged in a hand to hand struggle, in which defendant was thrown to the ground, but recovered and got away from deceased, whereupon the defendant put his hand on deceased's collar and fired the fourth shot into his breast. The following charges were refused to the defendant: "(41) Before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and unless the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty." “(75) The only foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence beyond a reasonable doubt and to a moral certainty that the defendant is guilty as charged in the indictment, and the exclusion of every probability of his innocence and every reasonable doubt of his guilt, and if the prosecution has failed to furnish such measure of proof, and to so impress the minds of the jury of his guilt, they should find him not guilty." "(49) Unless the jury are convinced beyond all reasonable doubt that the killing was done with malice, and not the result of passion suddenly aroused, then they should acquit the defendant of murder." "(20) If the jury have a reasonable doubt as to whether the killing was the result of malice, or the result of suddenly aroused passion produced by sufficient provocation, then they should give defendant the benefit of such doubt, and not find him guilty of murder in any degree. "(21) If the jury have a reasonable doubt as to whether the killing was a result of premeditation and deliberation or the result of sudden passion suddenly aroused by great provocation, then they should give the defendant the benefit of such doubt, and acquit him of murder in the first degree." "(71) If the jury believe from the evidence that the defendant, without fault on his part, was being attacked by Charlie Williams, and the attack was such as to create in the mind "(19) I charge you, gentlemen of the jury, that if you believe from the evidence that at the time the fatal shot was fired the defendant acted under the honest belief that he was in danger of his life or limb at the hands of deceased, then you should acquit him, provided he was free from fault in bringing on the difficulty." "(14) I charge you that the defendant was under no duty to retreat in this case, and if he was free from fault in bringing on the difficulty, and was attacked in the nighttime by the deceased, and the attack was such as to create in the mind of a reasonable man the impression that it was necessary for him to shoot his assailant in order to save his own life, then he had a right to anticipate the deceased and fire first, and you should acquit him." "(53) The court charges the jury that if they believe the evidence in this case it will be their duty to find that the defendant was under no duty to retreat. "(31) The court charges the jury that the defendant was under no duty to retreat in this case, and if he was free from fault in bringing on the difficulty he had a right to shoot Charlie Williams in defense of himself, if the circumstances were such as to impress the mind of a reasonable man that he was in great danger of life." "(30) The court charges the jury that under the law of this country the defendant had a right to carry a pistol in defense of himself." Tate & Walker, for appellant. Alexander M. Garber, Atty. Gen., for the State. SAYRE, J. The state showed without objection that the defendant, an hour or two before the killing, which occurred within the curtilage of defendant's home, had gone to the home of the deceased and there had an angry conversation with the wife of deceased, during which he had made threats comprehensive enough to embrace the deceased, as well as his wife. The state was permitted, over defendant's objection, to show that defendant had at the time a pistol. This, in connection with the threat, was permissible for the purpose of illustrating defendant's mental attitude towards the deceased when the latter was shortly thereafter slain by the defendant. It may be that ideas intended to be con a blow stricken or threatened. The case of Martin v. State, 119 Ala. 1, 25 South. 255, cited by defendant, recognizes the principle stated. The charges there considered asserted defendant's freedom from guilt of refused to the defendant would have been of Charge 49 was properly refused. Passion assistance to the jury in understanding the suddenly aroused, without more, cannot relaw of the case and in reaching a righteous | duce a homicide from murder to manslaughverdict; but they had each been stated to | ter. It must be aroused by nothing less than the jury substantially in one or more of the 58 charges which were given by the trial court. They, therefore, needed not to be repeated by that court, nor do they call for consideration at length by this. Particularly is this true of those numerous charges murder where the killing was the consewhich stated so simple a proposition as that the jury must be convinced beyond a reasonable doubt, and defined a reasonable doubt in so great a variety of form and language as probably would lead the jury to the opinion that a doubt of the sort was of delicate and difficult comprehension, and inspire the fear that perhaps, after all, a jury of ordinary men might miss its meaning. Charge 41, the second of that number to be found in the record, and discussed in appellant's brief, appears to have been given in the court below. The other charge 41, which was refused to the defendant, was properly refused. Charges of similar import have been condemned by this court in Allen v. State, 111 Ala. 88, 20 South. 490, and in subsequent cases. Charge 75 was open to criticism. It was treated as a proper charge in Brown v. State, 118 Ala. 114, 23 South. 81, where the defendant had been convicted of burglary. In Johnson v. State, 133 Ala. 38, 31 South. 951, the charge was criticised as calculated to mislead the jury to believe that the evidence adduced by the state alone should show the defendant to be guilty, whereas it was the duty of the jury, in determining the question of guilty, to consider also the testimony introduced by the defendant, which in itself proved the homicide, if nothing more. So here the evidence offered by the defendant not only showed the act of killing by the defendant, but the most damaging circumstances against him, to wit, that after defendant had gotten from under the deceased, after they had fallen to the ground in a hand to hand struggle, he held deceased down with his left hand while he put the pistol to the breast of deceased and fired the fatal shot. Sanders v. State, 134 Ala. 74, 32 South. 654. This charge was also faulty because it asserted the defendant's right to an acquittal on a failure to prove his guilt as charged. The indictment charged murder. But under it, and under one aspect of the evidence, the jury might have convicted the accused of manslaughter in the first degree. The charge was therefore misleading, and at outs with numerous decisions of this court to the ef fect that, in cases of this character, instructions predicating the insufficiency of evidence to justify a conviction of a higher degree of homicide, without regard to its sufficiency to justify conviction of an included lesser degree, are essentially erroneous. Stoball v. State, 116 Ala. 454, 23 South. 162; quence of passion suddenly aroused by a blow given. In Smith v. State, 83 Ala. 26, 3 South. 551, also cited by defendant, there was evidence going to show that the defendant had overheard the prosecutor making insulting proposals to his wife, and, on entering his own house, was assaulted by the prosecutor with a knife. The court, in dealing with that case, might safely assume the adequacy of such provocation. It was not within the uncontrolled power of the jury to say what should be taken as sufficient provocation. What would be sufficient provocation of such passion as would reduce the grade of the homicide is a question of technical, legal learning, which should be defined by the court, and not left to the jury. Jones v. State, supra. Charges 20 and 21 were therefore properly refused. Charges 71, 72, 19, 14, 53, and 31 seem to have been framed with the purpose to assert the doctrine that if the defendant was free from fault in bringing on the difficulty, and acted on the belief, "well-founded and honestly entertained" at the time of the fatal shot, that he was in imminent danger of life or limb, and must fire in order to save himself, he should be acquitted. They were evidently not refused as faulty in pretermitting duty to retreat, for the court charged the jury affirmatively that defendant, being at the time within the curtilage of his own home, was not required to retreat. They were refused for the fault with which they are affeeted, a failure to state that belief of imminent peril, and of an urgent necessity to slay an assailant, to justify, though it may be based upon appearances, must be both well-founded and honestly entertained. Jack71 Ala. 330; McCain v. State (at present son v. State, 78 Ala. 471; Storey v. State, stance of these charges was more than once term) 49 South. 361. Moreover, the subgiven to the defendant in other charges. Charge 30, refused to the accused, assumed as a fact that he did carry a pistol for defensive purposes, and was properly refused for that reason. Charges 5 and 6 were substantial duplicates of charge 4, which was given. We have scrutinized the record without finding error, and the judgment and sentence of the court will be affirmed. Affirmed. DOWDELL, C. J., and ANDERSON and (161 Ala. 489) IRWIN v. LOUISVILLE & N. R. CO. (Supreme Court of Alabama. June 10, 1909.) 1. CARRIERS (§ 284*)-DUTIES AS TO PASSENGERS ON RAILROADS-PREVENTION OF INJURIES BY STRANGERS-KNOWN AND UNKNOWN DANGERS. Where neither the carrier nor its agents know of danger to a passenger, and could not reasonably anticipate or provide against injury, the carrier is not liable for an injury suffered at the hands of a stranger, though it is bound to protect its passengers from all dangers which are known, or by the exercise of a high degree of care ought to be known, whether occasioned by its own servants or strangers. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1125-1135, 1173, 1222; Dec. Dig. $ 284.*] 2. CARRIERS (§ 305*)-INJURY TO PASSENGER -CONCURRING NEGLIGENCE OF STRANGER AND CARRIER. If a passenger's injury is the result of the concurring negligence of a stranger and the car rier, the latter is liable. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 1132; Dec. Dig. & 305.] 3. CARRIERS (290*)-DUTY AS TO PASSENGER -VEHICLES AND APPLIANCES. Carriers of passengers must provide vehicles as safe as skill and foresight can reasonably make them, and the various appliances with which they are equipped must be kept in a safe and suitable condition; and if a passenger is injured, owing to any defect or unsafe condition of the vehicles, carriages, or cars, or of the appliances, the carrier is liable. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1168-1184; Dec. Dig. § 290.*] 4. CARRIERS (8290*)-DUTY AS TO PASSENGER -VEHICLES AND APPLIANCES. A carrier of passengers must provide cars and appliances of the most approved type in general use by others engaged in a similar occupation, and exercise a high degree of care to maintain and keep them in suitable repair and efficient for their intended purpose. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1168-1184; Dec. Dig. § 290.*1 5. CARRIERS (§ 280*)-SAFETY OF PASSENGERS -DUTY TO ABSOLUTELY WARRANT-LIABILITY FOR UNAVOIDABLE CASUALTIES. MAYFIELD; J. The appellant, as a passenger, sued the appellee, as a railroad common carrier, to recover damages for personal injuries received and suffered by her, while a passenger on its train, as the result of being struck by a missile that came through the window of the car, and also by flying glass knocked from the window by the missile. The missile was evidently thrown through the window from without by some miscreant, a third party. Railroad companies, as common carriers of passengers, are perhaps not bound to protect their passengers from injuries by third persons to the same extent and degree as from like injuries by their own agents or employés, yet they must use a high degree of care to prevent such injuries by strangers; but if the carrier or its agents have no knowledge of the condition of danger to which the passenger is subjected, and could not reasonably have anticipated the injury, or provided against it, the carrier is not and ought not to be liable for an injury suffered by a passenger at the hands of a stranger. But the carrier is under the duty to protect its passengers from all dangers which are known, or which by the exercise of a high degree of care ought to be known, whether occasioned by its own servants or by strangers. And if the injury suffered by the passenger is the result of the concurring negligence of a stranger and its own, the carrier is liable. Elliott on Railroads, § 1639; Hutchinson on Carriers (1906 Ed.) § 913. The law does not impose on carriers the Carriers are required to provide for pasduty of absolutely warranting the safety of passengers vehicles as safe as skill and foresengers, and for casualties against which human sagacity cannot provide, nor the utmost prudence prevent, a carrier is not liable. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1085-1106; Dec. Dig. § 280.*] 6. CARRIERS (§ 302*)—INJURY TO PASSENGER -MISSILE THROWN THROUGH CAR WINDOW -LIABILITY OF CARRIER. Under ordinary circumstances, a railroad company is not required to anticipate that a missile will be thrown through a car window by a stranger and injure a passenger, and is not required to see that the blind is closed or lowered to prevent it, the glass and blinds being intended only to admit and exclude light and air for the comfort and pleasure of passengers; and, in the absence of any showing that such an assault or injury could have been reasonably anticipated at the time and place at which it happened, the carrier cannot be held liable for the injury. [Ed. Note. For other cases, see Carriers, Dec. Dig. § 302.*] Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge. sight can reasonably make them, and the various appliances with which these vehicles are equipped must be kept in a safe and suitable condition; and if a passenger suffers an injury in consequence of any defect or unsafe condition of the vehicles, carriages, or cars, or of the appliances thereof, the carrier is liable therefor. The carrier is not, however, charged with the duty of providing or maintaining vehicles or appliances which will absolutely prevent injury to passengers. This would probably be impossible. If not, it is too high a duty to impose upon the carrier. But the carrier is required to provide cars and appliances "of the most approved type in general use by others engaged in a similar occupation," and, having so provided, it must exercise a high degree of care to maintain and keep them in suitable repair and efficient for their intended purpose. The law is very strict and stringent as to the duties it imposes upon common carriers for the safety of passengers; but there is no absolute warranty of safety imposed. There are certain risks and dangers to which passengers are necessarily exposed, for which the carrier is not, and ought not to be, liable. These are the casualties against which human sagacity cannot provide, nor the utmost prudence prevent. Every passenger must and does assume the risks incident to the mode of travel he selects, when they cannot be avoided or prevented by the utmost care and skill on the part of the carrler. It is common knowledge that passengers on ordinary railroad cars open and shut the blinds to the windows, and raise and lower the windows, near their seats, at their pleasure; that they adjust them to suit their own convenience; that if they cannot do so this is usually done by the employés of the carrier, at the request and in accordance with the wishes and directions of the passengers. While employés of railroads do open and shut the doors to the cars, and raise and lower the blinds and windows, the passengers also do the same, and the employés of the carrier perform these acts at the request of the passengers. While the carrier or its employés probably can control the passengers, as to whether the doors or windows or blinds shall be opened or clos ed, yet the passengers usually open or close them at their own will, and if restrained or prevented from so doing it is the exception and not the rule. The facts in this case show without dispute that the car in question was provided with glass windows and wooden blinds such as were in common use by the best regulated railroad carriers for such trains; that the blinds were up, but the window was down; that the missile was hurled through the glass by some unknown person or cause; that it struck plaintiff; and that pieces of the broken glass also struck her, inflicting personal injuries. It is insisted by the plaintiff that if the blind had been closed or lowered, as it should have been, it would have arrested the missile and the broken glass, and have thus prevented the injury. Neither the glass nor the blinds are intended for the purpose of arresting such missiles, but are intended for the purpose of admitting and excluding light and air. They are designed for the comfort and pleasure of the passengers, who usually open and close them, or have it done, at their own pleasure. It is not to be expected or anticipated that miscreants will throw missiles through the windows of cars, or shoot through them, and thus injure or kill passengers, though such things do sometimes happen; but a carrier is not ordinarily chargeable with the duty of providing against such dangers or casualties, and there were no facts to show that such an assault or injury could have been reasonably anticipated at the time and place at which this happened. The carrier could no more anticipate such an accident than the passenger, and could not provide against it, except at the expense of the comfort and pleasure of its passengers, by removing the glass windows or obstructing them with heavy blinds or bars. If the closing or lowering of the blind would have prevented the injury, then the plaintiff was equally at fault in not closing it or requesting it to be closed. But the truth of the whole matter, which clearly appears from all the evidence, is that it was an accident or casualty, incident to this kind of travel, that was not to be anticipated or provided against, and for which the carrier is not and ought not to be liable. The court properly gave the affirmative charge for the defendant; and error in any other respect, if such there be, is necessarily without possible injury to the plaintiff. The judgment is affirmed. DOWDELL, C. J., and SIMPSON and McCLELLAN, JJ., concur. (161 Ala. 591) ATLAS COAL CO. v. O'REAR. (Supreme Court of Alabama. June 17, 1909.) 1. PLEADING (§ 430*)-VARIANCE - ALLEGA· TIONS AND PROOF. There was a fatal variance between averments of the complaint describing a contract declared on as between plaintiff and others and proof that the contract was between plaintiff and his brother, operating as partners, and the others, which could not be cured by proof that plaintiff's partner had relinquished any interest in the claim. BY [Ed. Note. For other cases, see Pleading, Dec. Dig. § 430.*] 2. PLEADING (8 245*) AMENDMENT PLAINTIFF AFTER DEMURRER TO EVIDENCE. The fact that defendant had demurred to the evidence would not, in view of the liberality of the statutes relating to amendment of pleading, ipso facto deprive plaintiff of the right to amend his complaint. [Ed. Note.-For other cases, see Pleading, Dec. Dig. § 245.*] 3. DISMISSAL AND NONSUIT (§ 25*)-DISCONTINUANCE-DISMISSAL AS TO ONE DEFEND ANT. Where it appeared that one defendant was acting in the premises only as the agent of the other defendant, plaintiff could dismiss as to the agent on the ground that no cause of action existed against him without effecting a discontinuance as to the other defendant. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. 88 47-59; Dec. Dig. § 25.*] Appeal from Law and Equity Court, Walker County; T. L. Sowell, Judge. Action by G. D. O'Rear against the Atlas Coal Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Bankhead & Bankhead, for appellant. | ruled. The demurrer to the evidence does Leith & Gunn and Sherrer & Cooner, for ap- not appear to have been ruled on. pellee. MCCLELLAN, J. The complaint is comprised of counts seeking recovery for the breach of a contract to deliver at an agreed price a certain number of cross-ties and also common counts for work and labor done and for money due on an account. The Atlas Coal Company and Charles A. Buck were the original parties defendant, and the special counts alleged that the contract was entered into between plaintiff, O'Rear, and these defendants. It is urged for appellant that the court was powerless to allow the amendment stated after the demurrer to the evidence was interposed. Since our statutes of amendment are so liberal, and have been always so construed and applied in that spirit, we do not think it can be safely or soundly held that demurrer to the evidence ipso facto deprives defendant in such demurrer of the right of amendment provided by the statutes. While the statute treating demurrer to the evidence commands the court to require the adverse party to join in the demurrer, yet that duty Aside from other questions, a reversal of on the court may be well performed, and the the judgment must result because of the right of amendment still preserved to the variance created by allegation that the con- adversary in the demurrer. The broad purtract was with the plaintiff, whereas the pose of our liberality in amendments, within proof tended to show only a contract with the statutes, is to determine the rights of the plaintiff and his brother, operating as part-parties litigant in the pending action. Some The plaintiff sought to avoid the effect of this variance by proof tending to show that his copartner had relinquished his interest in the claim arising from the alleged breach of the contract, or in the contract itself. It is manifest that this, if true, did ners. not affect to alter the averments of the complaint descriptive of the contract declared on, nor to qualify the asserted, by the plaintiff in the proof, fact that the contract was with him and another as partners. The amendment striking out the name of Buck as a party defendant still left the complaint with the averments descriptive of the contract. The affirmative charges as to counts 4 and 5, requested by defendant Atlas Coal Company, were erroneously refused to it on the score of a variance. Upon the conclusion of the plaintiff's evidence the defendants formally demurred to the evidence. Thereupon the plaintiff asked leave to amend the complaint by striking therefrom the name of Buck as a party defendant, and, over objection, the amendment was allowed. The Atlas Coal Company then moved the court to enter a discontinuance of the action as to it. The motion was over strong reason ought to appear before the wholesome purpose if thwarted. We are of the opinion that a discontinuance was not effected by the dismissal as to Buck. Buck, it appears from tendencies of the evidence, was only acting in the premises as the agent of the defendant; and hence it was permissible for the plaintiff to dismiss as to him without operating a discontinuance, on the theory that "no just cause of action" existed against Buck. Torrey v. Forbes, 94 Ala. 140, 10 South. 320. Since a reformation of the complaint must be had before another trial below, there is no occasion to consider the sufficiency of the special counts as against the demurrers interposed thereto. It will suffice to say that Tenn. & Coosa R. R. v. Danforth, 112 Ala. 80, 20 South. 502, appears to announce general principles of law applicable to the rights and liabilities of the parties on the general status evinced by this record. The judgment is reversed, and the cause is remanded. Reversed and remanded. DOWDELL, C. J., and ANDERSON and SAYRE, JJ., concur. |