Alabama City, G. & A. Ry. Co. v. Bessiere

• Decision Date: 11 May 1916
• Docket Number: 7 Div. 757
• Citation: 72 So. 325,197 Ala. 5
• Court: Alabama Supreme Court
• Parties: ALABAMA CITY, G. & A. RY. CO. v. BESSIERE.

72 So. 325

197 Ala. 5

ALABAMA CITY, G. & A. RY. CO. v. BESSIERE.

7 Div. 757

Supreme Court of Alabama

May 11, 1916

Rehearing Denied June 30, 1916

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Leonie Bessiere as administratrix, against the Alabama City, Gadsden & Attalla Railway Company, for damages for the death of her intestate. Judgment for plaintiff and defendant appeals. Affirmed.

Anderson C.J., and Sayre, J., dissenting.

The facts and the pleadings are sufficiently stated in the opinion in this appeal and the other appeals referred to in the opinion. Assignments of error referred to in the opinion are as follows:

The court erred in overruling appellant's objection to the question to Mr. West: "About how far, in your experience as a motorman, before reaching a stopping place where there is a passenger to get on, a flag station where people are waiting to get on, is it necessary to begin to slacken the speed of the car, where the track is practically level?"

(6) Answer to question: "Three or four hundred feet."

(7) Question to same witness: "Would a car going five miles an hour on comparatively a level track, and a straight track, under proper control, is it necessary to run from 75 to 150 feet past the stopping place, to bring it to a stop?"

(8) Answer of witness: "If there is nothing wrong with the car, no reason why he should run by as I can see." This witness was shown to have been a motorman for several years.

(9) Question to witness Beverly, who testifies that he has operated cars for several months in Mobile, and on the Attalla line: Mr. Beverly: "A motorman in charge of a car on comparatively level spaced track approaching a flag station where a person is waiting to take passage on the car at the station, how far before reaching the stopping place should the current be cut off?"

(10) Answer thereto: "It is owing to the rate of speed he is making. If about five miles an hour, he can stop a car in a car's length."

(11) Question to same witness: "If it takes 100 feet after the current is cut off, and after the brakes are so applied that the car comes to with a jerk, take 100 feet to stop it, in your judgment and experience as a motorman, how fast was that car going?"

(12) Answer of witness: "About 25 miles an hour."

The following charge was refused to defendant:

C. Unless Duncan, the motorman, saw Mr. Bessiere before the car struck him, if it struck him, the verdict should be for defendant.

Hood &amp Murphree, of Gadsden, for appellant.

E.O McCord and O.B. Roper, both of Gadsden, for appellee.

McCLELLAN J.

Previous appeals of this litigation will be found reported in 179 Ala 317, 60 So. 82, and in 190 Ala. 59, 66 So. 805. On the last trial the only issues, tendered by the complaint, submitted to the jury were those raised by the averments of count 12 as amended. It is correctly reproduced on page 60 of 190 Ala., 66 So. 805, except the words "at a great rate of speed and in darkness" were eliminated by amendment. It is now unnecessary to repeat the statement of the controversy sufficiently shown in the previous reports of the appeals. It will be sufficient to say at this time that the action is for damages for the death of plaintiff's intestate, amended count 12 attributing his wrongful death to the simple negligence of the motorman of a street car in approaching a flag station, on this occasion, without having his car under proper control.

The chief insistence for error is the refusal to the defendant of special instructions forbidding a recovery by plaintiff. In the last appeal the conclusion was expressed that the case made by the evidence then recited in the bill of exceptions required the submission of the issues of fact, under the twelfth count, to the jury. Counsel for appellant have submitted an exhaustive brief and argument in support of their contention for error in the refusal of affirmative instructions, based upon the view that there was no evidence, or reasonable inference from evidence, supporting, even prima facie, material averments of count 12. The evidence bearing on these issues and the earnest argument for appellant have been carefully considered; and no sufficient reason has been made to appear or has been disclosed to alter the conclusion heretofore announced.

There was evidence tending to show the presence of Henry Bessiere at the flag station for the purpose of taking passage to Gadsden on the defendant's car. There was evidence tending to show that the means of his death, at the station place, was an inbound car of which Motorman Duncan was the operative. There was evidence tending to show that that car on the occasion in question, approached the station place at a high speed, not under proper control, a speed indicative of the absence of the care due to be observed in the circumstances, on a dark, foggy night when the headlight on the car did not fully perform its service of giving warning of the car's approach and of lighting the way ahead. The defendant had provided this place (called Brown's Crossing) for the reception and discharge of passengers, the cars to stop upon signal for the reception of passengers. Obviously these circumstances created a positive duty on the carrier to approach this flag station with the...