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

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Alabama City, G. & A. Ry. Co. v. Bates, 155 Ala. 347, 46 So. 776 (Ala. 1908)
• Decision Date: 14 May 1908
• Parties: ALABAMA CITY, G. & A. RY. CO. v. BATES.

46 So. 776

155 Ala. 347

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

Supreme Court of Alabama

May 14, 1908

Appeal from Circuit Court, Etowah County; J. W. Inzer, Judge.

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

Action for damages for injuries received in an alleged attempt to take passage on one of defendant's electric cars. Judgment for plaintiff in the sum of $4,000. For the pleadings and facts in this case, see 149 Ala. 489, 43 So 98. The following portions of the oral charge were excepted to by the defendant:

"Negligence is the failure to do what a reasonable and prudent person would have done under the circumstances or the situation or doing that which a prudent person under existing circumstances would not have done."

"If plaintiff was a passenger on defendant's car, under the rules I will give you, it was the duty of the defendant as a common carrier of persons to use care, skill, and diligence towards plaintiff, and such care as careful and prudent persons engaged in a like business would exercise. And if the jury find that the defendant did not use such care, and that as a proximate result of said failure plaintiff received the injuries complained of in this suit, then the jury should find for the plaintiff, unless you find that he was guilty of contributory negligence which proximately contributed to his injuries, as will be shown in the subsequent part of this charge."

"Now, then, gentlemen, if you believe reasonably from the testimony in this case and you are reasonably satisfied from the evidence that the plaintiff presented himself on the platform there, and was approaching the entrance into the car, or had come near to the place of entrance, or had put his hands upon one of the handholds and raised his foot with the purpose of entering the car, and the conductor knew this condition of affairs, then I charge you, gentlemen, that man became and was from and after that time a passenger, or at least for the time being a passenger, on defendant's road."

"Proximate cause, as applied to contributory negligence, is want of ordinary care upon the part of the person injured by the wrongful act of another."

"Now, then, gentlemen, go back a little. I say to you that if plaintiff in this action was upon the platform that night, and near that car, and the conductor understood from expressed words or from the promise of the plaintiff himself that it was his bona fide intention to take passage upon that car that evening or night, and that he was approaching the car for that purpose, and the conductor saw him approaching the car as described by the witnesses, then I say to you, gentlemen, he became a passenger, and was entitled to protection and consideration of a passenger, upon that train."

"Now the question arises, was that injury the result of negligence upon the part of the defendant? If it was, the defendant should pay for it. If it was not, and was the result of the negligence of the plaintiff, or of somebody else, then the defendant should not pay for it. That is about the whole of it, as I understand it."

"I understand plaintiff is not insisting upon anything in this suit but actual damages. That is all that he is asking, that he be compensated for the injury; and that compensation you should give him, if you find that defendant negligently inflicted that injury upon his person, or brought it about; and it is a matter for you to determine. It is not a matter for me."

Hood & Murphree, for appellant.

Goodhue & Blackwood, for appellee.

ANDERSON J.

In the judgment from which this appeal is prosecuted it does not appear that there was a ruling upon demurrers to the fourth count. It does appear on a former judgment; but an appeal was prosecuted to this court subsequent to the rendition of said judgment, and the cause was reversed and...