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

• Court: Alabama Supreme Court
• Writing for the Court: TYSON, C.J.
• Citation: 149 Ala. 487,43 So. 98
• Decision Date: 14 February 1907
• Parties: ALABAMA CITY, G. & A. RY. CO. v. BATES.

43 So. 98

149 Ala. 487

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

Supreme Court of Alabama

February 14, 1907

Appeal from Circuit Court, Etowah County; W. W. Haralson, Judge.

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

Burnett, Hood & Murphree, for appellant.

Howard & Isbell and Goodhue & Blackwood, for appellee.

TYSON, C.J.

This case was tried upon the fourth count of the complaint, which was added by amendment. The plaintiff's injuries are alleged to have occurred while he was in the act of boarding one of defendant's cars as a passenger, while the car was stationary at a regular stopping place for the reception of passengers, and to have been caused by the negligent act of defendant in putting the car in motion when he was in a position that rendered it perilous to do so, thereby causing him to be violently thrown down, etc. The defendant's pleas were the general issue and contributory negligence. The contributory negligence alleged was: First, that plaintiff negligently attempted to board the car, while it was in motion, in front of a trunk near defendant's track, and while thus attempting to board said car he ran over or against said trunk, which caused him to fall, etc.; second, that plaintiff took hold of a handhold fastened to said car, and after said car was placed in motion, and while still holding onto said handhold, negligently walked along by the side of the car, keeping pace with it, when he ran over or against a trunk that was near defendant's railway track, which caused his fall; and, third, that plaintiff negligently attempted to board said car, while it was in motion, in front of a trunk standing on a platform near defendant's track, and while walking along by the side of said car on said platform, and just before plaintiff reached said trunk, he turned and looked away from the direction [43 So. 99] of said trunk, whereupon he ran over or against said trunk, which caused him to fall, etc.

We have set out the pleadings in detail and with particularity, in order that the issues of fact presented by them may be readily seen. It is scarcely necessary to say that the burden of proof was upon the plaintiff to establish every material allegation of his complaint. If he failed to show that he was a passenger at the time of his injury, or if that relation between him and the company is shown, and his injuries were caused other than by the negligent act of defendant in putting the car in motion, he was not entitled to recover. In other words, if he was not a passenger at the time he received his injuries, or if he was a passenger and his injuries were caused by his falling over the trunk, which was on the platform, in his attempt to board the car while it was in motion,...