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

Citation:7 So. 666, 89 Ala. 521
Opinion Judge:SOMERVILLE, J.
Party Name:ELYTON LAND CO. v. MINGEA.
Case Date:April 09, 1890
Court:Supreme Court of Alabama
 
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Page 666

7 So. 666 (Ala. 1890)

89 Ala. 521

ELYTON LAND CO.

v.

MINGEA.

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.

SOMERVILLE, J.

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...

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