Alabama Power Co. v. Holmes
| Decision Date | 05 February 1918 |
| Docket Number | 8 Div. 539 |
| Citation | 16 Ala.App. 633,80 So. 736 |
| Parties | ALABAMA POWER CO. v. HOLMES. |
| Court | Alabama Court of Appeals |
On Rehearing, June 29, 1918
Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.
Action by Willie Holmes against the Alabama Power Company. From judgment for plaintiff, defendant appeals. Affirmed.
Certiorari denied, 80 So. 438.
Spragins & Speake, of Huntsville, for appellant.
Taylor & Watts, of Huntsville, for appellee.
The averments of the third count of the complaint, that the defendant's servants negligently ran the car against the buggy in which the plaintiff was sitting, while it was on West Clinton street in the city of Huntsville, is sufficient to show that the plaintiff was not a trespasser on the defendant's tracks, and hence that it owed her the duty not to negligently injure her. B.R., L. & P. Co. v Fox, 174 Ala. 657, 56 So. 1013; B., E. & B.R. Co. v Feast, 192 Ala. 410, 68 So. 294; Montgomery Street Ry. Co. v. Shanks, 139 Ala. 489, 37 So. 166; B.R L. & P. Co. v. Clark, 148 Ala. 673, 41 So. 829; Sou. Ry. Co. v. Crenshaw, 136 Ala. 573, 34 So. 913.
While charge 1, refused to the defendant, asserts a general principle of law applicable to the case, its refusal in this case was clearly not injurious to the defendant, in view of charges 2 and 5 given at defendant's instance, which assert the same proposition of law as applied to the evidence in the case, hyphothesizing the only possible theories upon which the doctrine of unavoidable accident could be applied to the case in hand.
After a careful review of the evidence in the case, we are not able to say that the action of the court in denying the motion for a new trial was erroneous. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Veid v. Roberts (Sup.) 76 So. 934.
On Rehearing.
The appellant in brief supporting the application for rehearing concedes that our holding that the demurrer to the third count of the complaint was properly overruled is supported by the case of B.R., L. & P. Co. v. Fox, 174 Ala. 657, 56 So. 1013.
We take this from appellant's brief:
In disposing of this case, we were not unmindful of the holding of the Supreme Court that the right to the use of a street, as a street whereon a street railway has been laid, is confined to cases where the railway is flush with the street surface, relegating to the category of a trespasser a pedestrian who moves upon a railway (otherwise than in crossing it) that was not so constructed with the street as to be flush with it, usable as a part of the street surface. But the trouble with appellant's contention is that his demurrers do not raise this point. There is not the least suggestion in the demurrers that this is the objection sought to be presented, and this question possibly did not occur to the trial court in passing upon the demurrers, and there is certainly nothing in the grounds of demurrer stated to direct the court's attention to this proposition. The grounds stated are:
(1) It does not appear therefrom but that plaintiff was a trespasser upon defendant's track.
(2) It does not appear therefrom that plaintiff had a right to be where she was when struck by defendant's car.
(3) It does not appear therefrom that plaintiff, when injured, was crossing defendant's track at a place where she had a right to cross.
(4) It does not appear therefrom that defendant owed plaintiff any duty except not to injure her wantonly or willfully.
(5) It does not appear therefrom at what place said injury occurred.
These grounds are not specific enough under our statute to put the court in error for...
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