7 So. 666 (Ala. 1890), Elyton Land Co. v. Mingea

Citation:7 So. 666, 89 Ala. 521
Opinion Judge:SOMERVILLE, J.
Case Date:April 09, 1890
Court:Supreme Court of Alabama

Page 666

7 So. 666 (Ala. 1890)

89 Ala. 521




Supreme Court of Alabama

April 9, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by Samuel Mingea, a fireman of the city of Birmingham, against the defendant, for damages for personal injuries incurred by the overturning of the hose-cart upon which he was riding. The original complaint contained two counts, the first being based upon the alleged negligence of the defendant in not keeping its railway at the place of the accident, properly ballasted, surfaced, and filled in. The second was founded upon the same acts of negligence, which were alleged to be in violation of a contract between the defendant company and the city of Birmingham, whereby defendant was obliged to keep its track properly ballasted, surfaced, and in good repair. The complaint was amended by adding a third count, upon the same acts of negligence, committed in violation of a city ordinance. The defendant demurred to the amendment on the ground that it introduced a new cause of action, and the overruling of the demurrer is assigned as error. The complaint was also amended, against the exception of defendant, by alleging more specifically the defendant's negligence in "failing to keep its said railway track and road-bed in a reasonably safe condition at the point where said hose-carriage was overturned. The verdict and judgment were for the plaintiff, from which defendant appeals.


The plaintiff, as an employe of the fire department of Birmingham, while riding on a hose-cart or reel, in the regular pursuit of his duties as a fireman, was injured badly by the capsizing of the vehicle, as it turned suddenly from Twenty-Second street into Avenue A, which intersected the street at right angles. The horses of the cart were driven by one Mullins, also a fireman, and were under his exclusive control. The alleged cause of the accident was the impinging or concussion of the cart wheels on the iron rails of the defendant's dummy line railway, which projected above the surface of the track. The evidence tended to show that the condition of the dummy or street railway track was bad, and had become dangerous for the passage of vehicles, by reason of being defectively ballasted and surfaced; and that the duty of keeping the track in good condition devolved on the defendant as owner of the line, and by special contract with the city. The accident is alleged to have been caused by the negligence of the defendant in failing to keep its track in proper repair.

1. The court charged the jury that the negligence of Mullins, the driver of the hose-carriage, could not be imputed to the plaintiff, and would be no bar to his recovery in the present action, provided the plaintiff himself was guilty of no negligence. And many charges, requested by the defendant, were refused which sought to impute the alleged negligence of the driver to the plaintiff, although the latter had no control over the management of the hose-carriage, or the control of the horses attached to it. The question raised by these rulings is the old one first decided in the familiar and much criticized English case of Thorogood v. Bryan, 8 C. B. 115, (1849), and followed afterwards in Armstrong v. Railway Co., L. R. 10 Exch. 47, (1875.) The action in that case was one founded on Lord Campbell's act, in which the deceased, a passenger in an omnibus, as he was alighting, was knocked down and killed by collision with another omnibus belonging to the defendant. The defense interposed was the contributory negligence of the driver of the vehicle in which the plaintiff was riding. The question was whether a passenger in an omnibus is to be considered so far identified with the owner that negligence on the part of the owner or his servants is imputable to the passenger himself. It is difficult to perceive any sound principle upon which the case of Thorogood v. Bryan can be maintained, and it is admitted on all sides, by the great and daily increasing weight of authority, that the decision rests on indefensible ground.

In this state I find two cases opposed to it in principle, and none in support of it. In Otis v. Thorn, 23 Ala. 469, (1853,) where a stage-coach in a ferry-boat was lost by negligent collision with a steam-boat, and an action was brought against the latter by the owner of the coach, it was decided that the contributory negligence of the ferryman was a fact entirely irrelevant to the issue of the defendant's liability. So, in the recent case of Railway Co. v. Hughes, 87 Ala. 610, 6 South. Rep. 413, an action for personal injuries sustained by the plaintiff through the negligent collision of two railroad trains at a crossing, it was held that the contributory negligence of the plaintiff's carrier was no bar to plaintiff's recovery, not being imputable to him. In Little v. Hackett, 116 U.S. 366, (1885,) 6 S.Ct. 391, the decision of Thorogood v.

Page 667

Bryan was fully discussed and...

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