Mobile Light & R. Co. v. Ellis

• Decision Date: 07 June 1923
• Docket Number: 1 Div. 246.
• Citation: 96 So. 773,209 Ala. 580
• Court: Alabama Supreme Court
• Parties: MOBILE LIGHT & R. CO. v. ELLIS.

96 So. 773

209 Ala. 580

MOBILE LIGHT & R. CO. v. ELLIS.

1 Div. 246.

Supreme Court of Alabama

June 7, 1923

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action for damages by James C. Ellis, Jr., against Mobile Light &amp Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for damages for personal injuries received by Ellis, plaintiff, appellee. On former appeal, from a judgment in plaintiff's favor for $2,000 reversal was entered because of error in overruling demurrer to the count (2) reproduced in the report of that appeal. Mobile, etc Co. v. Ellis, 207 Ala. 109, 92 So. 106. The complaint was rewritten after remandment, and as thus amended contains counts 1 and 2. Aside from the detailed description of plaintiff's injuries, count 1 and this amended complaint is as follows:

"(1) Plaintiff claims of the defendant the further sum of $10,000 damages, for that heretofore, to wit, on the 31st day of August, 1920, the defendant, being then and there a common carrier of passengers for hire, was the owner and operator of a certain street railway passenger car propelled by electric motive power, with a certain trailer car thereto attached, operated by the defendant over the defendant's line of railway for the carriage of passengers en route from the city of Mobile, in the state of Alabama, and county of Mobile, and other points along the said street railway line, to Chickasaw, in said state and county; that upon said line of railway there was a regular stopping place for said car at the intersection of Wilson avenue and Osage streets, in or near the town of Toulminville, in said state and county; that then and there the proper and customary signal was given to those in charge of the said car to stop at said regular stopping place for the purpose of taking on passengers. Nevertheless, the said car was run past the said regular stopping place, and was brought to a stop for the purpose of taking on passengers at some distance, to wit, the distance of two car lengths, beyond the said regular stopping place; thereupon it became and was the duty of the conductor upon the said car to exercise reasonable care to keep the said car stationary, and the entrance thereto open, long enough for the plaintiff and other persons then and there boarding, or about to board the said car as passengers, to enter therein in safety. Nevertheless, and notwithstanding the said duty owing by the said defendant and its servants to the plaintiff, the said conductor, whose name to the plaintiff is unknown, then and there a servant of the defendant, and acting within the line and scope of his employment as such servant, as the plaintiff, upon a run, following alongside the said trailer car closely behind one Wilbur Rachels, who had just boarded and entered the said car as a passenger, and while the said car was stationary for the purpose of receiving passengers, and as the said plaintiff was himself in the act of boarding and entering the said car for the purpose of becoming a passenger, and while the plaintiff was in the act of reaching his right hand for the handrail at the entrance of the said car, did negligently and carelessly, and without warning to the plaintiff, suddenly close the door to the entrance of the said car, and plaintiff avers that as the proximate result of such action of the said conductor the plaintiff's right hand was caused to be thrust violently through the glass panel in said door, severely cutting and wounding the plaintiff on and upon his right arm and right wrist. ***"

The following demurrers, overruled by the court, were interposed to counts 1 and 2, respectively, of the complaint as last amended:

"(1) Because it does not appear from said count that the defendant had issued any invitation, either express or implied, to the plaintiff's boarding said car, or had in any manner consented to the plaintiff's becoming a passenger thereon.

"(2) Because it does not appear from said count that the said car was stopped for the purpose of taking on the plaintiff or any passengers other than those who had signaled the car to stop, or that the conductor at the time of closing said door had any reason to believe that the plaintiff was attempting to board said car as a passenger.

"(3) Because the allegation that it was the duty of the conductor upon said car to exercise reasonable care to keep said car stationary and the entrance thereto open long enough for the plaintiff and other persons then and there boarding said car or about to board said car as passengers to enter therein in safety is the mere conclusion of the pleader, and no facts are alleged in said complaint out of which said duty arose.

"(4) Because it does not appear from said count that at the time the said conductor closed said door he knew or that by the exercise of reasonable diligence he would have known that the plaintiff was then and there in the act of boarding and entering said car for the purpose of becoming a passenger.

"(5) Because, while it is alleged in said complaint that the plaintiff was, at the time that the conductor closed said door, in the act of boarding or entering said car for the purpose of becoming a passenger, and in the act of reaching his right hand for the handle rail at the entrance to said car, it does not appear that he was then in such a position that the said conductor either saw or could have seen him, or knew or could have known, that he was in the act of boarding or entering said car or reaching his right hand for the rail at the entrance of the car, or that the defendant owed the plaintiff at that time any duty to receive him as a passenger to look out for his presence.

"(6) Because it does not appear from the said count that the defendant owed the plaintiff any duty not to close the said door to the entrance of said car at the time and place when it did so."

To the second count:

"(1) Because while said count alleged that the said conductor did wantonly or willfully injure the plaintiff, it further alleges that said wantonness or willfulness consisted of suddenly closing the door to the entrance of the car without warning the plaintiff, and it does not allege that the said conductor had any knowledge that the plaintiff was then and there in such a position as to be injured by the closing of said door, so that it appears that the conclusion of the pleader that the said injury was wantonly or willfully inflicted is not supported by the facts alleged as to the manner of said injury."

Count 2 discloses the pleader's purpose to characterize substantially the same conduct of the defendant's street car conductor as a willful or wanton wrong, employing therein like terms descriptive of the occasion and means of injury already set forth in the first count. At the request of the defendant the court instructed the jury that there was "no evidence of wanton wrong on the part of the conductor of the defendant's car." It does not appear from the record that affirmative instructions were requested for defendant with respect to willful injury to plaintiff, or with respect to plaintiff's right to recover under count 2. However, in overruling plaintiff's demurrer to plea 2, a plea of contributory negligence, the court below interpreted the count (2) as charging simple negligence, not a willful or wanton wrong. Besides general traverse, the defendant asserted plaintiff's contributory negligence and the statute of limitations of one year.

There was judgment for the plaintiff for $5,000. The transcript does not contain any motion for new trial; hence no question of the amount of the verdict is presented for review.

Further statement of the case will be made in the opinion in connection with the particular matters urged for error.

Harry T. Smith & Caffey, of Mobile, for appellant.

Stevens, McCorvey, McLeod & Goode, of Mobile, for appellee.

McCLELLAN J.

Following remandment on former appeal (207 Ala....