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

• Decision Date: 07 November 1914
• Docket Number: 660
• Citation: 190 Ala. 59,66 So. 805
• Parties: ALABAMA CITY, G. & A. RY. CO. v. BESSIERE.
• Court: Alabama Supreme Court

66 So. 805

190 Ala. 59

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

No. 660

Supreme Court of Alabama

November 7, 1914

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

Action by Leonie Bessiere, administratrix, against the Alabama City Gadsden & Attalla Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The following are the counts of the complaint ordered to be set out:

(12) "Plaintiff claims of defendant the other and further sum of *** as damages, for that heretofore, to wit *** defendant was engaged in the business of operating a street railway in the city of Gadsden, Alabama, said railway being equipped with cars propelled by electricity and carrying passengers for hire; and plaintiff avers that on said date, in said city, at a place commonly known as Brown's Crossing, or Brown's Station, a place where passengers were regularly taken aboard defendant's cars and after the hour of 7 o'clock in the evening, when it was dark, plaintiff's intestate was waiting to take passage on one of defendant's cars; and plaintiff avers that she was damaged in this: That defendant negligently carelessly, or recklessly permitted one of its cars, upon which plaintiff's intestate was waiting to take passage, to approach said crossing at a great rate of speed, and in the darkness, and without having said car under proper control, and thereby negligently, carelessly, or recklessly ran said car against plaintiff's intestate, and he was thereby killed," etc.

(13) Same as 12, down to and including the words "plaintiff's intestate was waiting to take passage on one of defendant's cars," and adds: "And plaintiff avers that she was damaged in this: Defendant negligently had in its employ as motorman of one of its cars one W.D. Duncan, who was unskilled, inexperienced, or incompetent, and the said Duncan at the time and place aforesaid ran said car against plaintiff's intestate, and thereby killed him; and plaintiff avers that he was so killed him; and plaintiff avers that the was so killed by reason of the negligence of defendant in having said Duncan in its employ as such motorman."

(A) "The plaintiff, suing as the administratrix of the estate of Henry Bessiere, deceased, claims of defendant the sum of $25,000 as damages, for that on or about February 1, 1911, defendant was engaged in the business of a common carrier of passengers, at the time propelling a car by electricity at or near Brown's Crossing, or Brown's Station, in the city of Gadsden, *** and then and there, through its servant or agent, one Duncan, wantonly, willfully, or intentionally drove or propelled its said car upon, over, or against plaintiff's intestate at or near said crossing or station, bruising, crushing, and killing him."

(AA) Same as A, down to the stars therein, and adds: "Having and operating cars propelled by electricity, and on said date had a stopping place to take on and let off passengers at Brown's Crossing, or Station, in said city, at which place, when the usual signals were given, said cars stopped for said purpose; and plaintiff avers that it was the duty of defendant, its agents, and servants in charge of the operation of said cars at said stopping place to use due care in operating the same, so as not to injure those offering themselves as passengers, and seeking to board said cars at said place; and plaintiff avers that at said place, on said date, her intestate in the usual manner offered himself as a passenger, and was seeking to board one of said cars of defendant, and a motorman in the service of defendant, and in charge of the operation of said car, negligently failed to use due care in the operation of said car at said time and place, and as a proximte consequence thereof ran said car over and against plaintiff's intestate, and killed him."

(B) Same as AA in the statement of fact, and adds: "While plaintiff's intestate was on or near the track of defendant's said street railway, her intestate was run over or against by one of defendant's cars, and killed; and plaintiff avers that the death of her intestate was proximately caused by the negligence of one Duncan, a servant or agent of defendant, in this: That said Duncan, while in charge of said car as motorman, discovered before plaintiff's intestate was killed that said intestate was placed in imminent peril of great bodily harm or loss of his life by the approaching car of which he was in charge or control as said motorman of defendant, and after said discovery by him he so negligently managed, ran, or controlled said car as to cause it to run over or against plaintiff's intestate, and kill him."

The pleadings filed were the general issue to the whole complaint, and the following pleas to counts 12 and 13:

(2) Contributory negligence, in failure to stop, look, and listen for an approaching car before he went upon the railroad track.

(3) Same as 2.

(4) Proximate contributory negligence, in that he stood or loitered on the railroad track, or so near thereto that a car traveling thereon would strike him, and did not keep a lookout or listen for an approaching car, etc.

(5) Same as 4.

(6) Proximate contributory negligence, in that he tried to board said car while it was moving, in a careless, listless, and negligent manner, thereby suffering said car to knock or throw him down.

(7) Proximate contributory negligence, in that he tried to board said car while it was running at a rapid and dangerous rate of speed.

(8) Same as 7.

The same pleas were filed to counts A, AA, and B.

Hood & Murphree, of Gadsden, for appellant.

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

McCLELLAN J.

A sufficient statement of the outline of, and many of the details presented in, this litigation will be found set forth in its report on former appeal. 60 So. 82. On the succeeding trial, the issues made by the plaintiff's pleading, and not denied submission to the jury, were counts 12, 13, A, AA, and B. Additional to general traverses of these counts, the defense interposed were acts of contributory negligence in varied forms. The reporter will summarily set forth the indicated counts, and the pleas addressed to them, in his recital of the facts. The legal principles applied to the case, in all its features, have been too often and recently stated to be now at all unfamiliar.

Count 13 ascribed Bessiere's death to the unskillfulness, inexperience, or incompetency of Motorman Duncan, in breach of the common-law duty of exercising reasonable care in the selection or continued retention of its servant.

It is the duty of those serving the public as carriers of passengers to use reasonable care and diligence in selecting competent and careful servants. The law requires that companies using instrumentalities which, if not skillfully handled, are very dangerous, shall exercise due care and diligence to have competent employés in charge thereof. Holland v. T.C.I. & R.R. Co., 91 Ala. 444, 8 So. 524, 12 L.R.A. 232; 6 Cyc. pp. 596, 597; Olsen v. Citizens' Ry. Co., 152 Mo. 426, 54 S.W. 470. The observance and exercise of a like degree of care is required of the master in discovering and remedying any incompetency which may afterwards be developed. Holland's Case, supra. Where the service involves special knowledge or experience, only individuals having qualification therefor should be employed.

But the employer is not an insurer in the premises; for the master meets the obligation of duty in that regard by observing and exercising reasonable care and diligence to engage and to retain employés possessing the...