Anniston Electric & Gas Co. v. Rosen

Decision Date04 February 1909
Citation159 Ala. 195,48 So. 798
PartiesANNISTON ELECTRIC & GAS CO. v. ROSEN.
CourtAlabama Supreme Court

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Action by Harry Rosen against the Anniston Electric & Gas Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Plaintiff's complaint was substantially as follows:

(1) The plaintiff claims of the defendant, a corporation, the sum of $1,500 damages, for that, to wit, on the 14th day of May 1906, while the plaintiff was attending to some private business, riding in a buggy drawn by a horse along Pine avenue, which is a public street in the city of Anniston Ala., and just as he was turning out of Pine avenue into and for the purpose of going westward along Fifteenth street which is another public street in said city, one of the electric cars of the defendant, in charge of and being operated by an agent or servant of defendant, ran violently against plaintiff's horse and buggy, said buggy was demolished, and said horse thrown violently to the ground and his leg broken, and the plaintiff was thrown from the buggy to the ground. The plaintiff avers that the place of said collision was a street crossing, and a populous district in said city, and that he was turning from Pine avenue into Fifteenth street for the purpose of going westward along Fifteenth street on business as aforesaid, and defendant's car was approaching from a westerly direction along Fifteenth street, and was then, to wit, 70 yards distant from the point of collision and in plain view of plaintiff's horse and buggy, and said motorman then and there in charge of said car saw, or by the exercise of reasonable care could have seen, plaintiff's buggy and horse in a position of peril on the track of the defendant and he was then sufficiently far from the same, had he used due care and the means at hand, to have stopped said car before the collision, and thereby have prevented the injury, but he did not do so; and the plaintiff avers, further, that just before or about the time the front wheel of his buggy had reached the north rail of the tracks, said car was, to wit, 60 feet distant, and the plaintiff averred that even then said agent or servant of defendant in charge of said car saw, or by the exercise of reasonable care could have seen his peril, and by the use of means at hand could have stopped said car in time to have prevented said collision and injury, but he failed to do so, and in consequence plaintiff suffered injury in this: Here follows a catalogue of his injuries and special damages. It is alleged that the horse was so injured that he was rendered worthless, and that the buggy and harness were totally destroyed, and that they were the property of plaintiff.

(2) Plaintiff claims of the defendant, a corporation, the sum of $1,500 damages, for that heretofore, to wit, on the 14th day of May, 1906, the defendant was engaged in the operation of electric street cars in the city of Anniston, Ala. On said date the defendant's said agents and servants, in charge of and operating one of its cars, after discovering that the plaintiff and his horse and buggy were on defendant's track in a position of peril, and in danger of being injured, failed to exercise due care and diligence to avoid injuring plaintiff, when the exercise of such care and diligence would have avoided injuring him, whereby said car struck said horse and buggy, and he was injured thus: Here follows a catalogue of the injuries and special damages. And plaintiff avers that the defendant's agent or servant, in charge of or operating said car, saw and knew of his peril; but, notwithstanding this, he wantonly and recklessly or intentionally ran said car against him, and that he did not use the means at hand to prevent said collision and injury, when the use of such means would have prevented same, with same allegation as to horse and buggy as made in count 1.

(3) Same as 1, except that it is alleged that, just about the time the front wheel of the buggy reached the north rail of the track, plaintiff's horse balked or stopped, while plaintiff was trying to pull him off the track, and that said car was about 60 feet distant, and that even then the agent or servant of defendant, in charge of said car, saw, or by the exercise of due care and diligence could have seen, his peril, etc.

(4) Formal charging part same as 1. It is then alleged that the intersection of Pine avenue and Fifteenth street, where plaintiff turned out of Pine avenue into Fifteenth street, is a public street crossing, where a great many people, horses, and vehicles are accustomed to pass and repass, and was such on said date; and plaintiff avers that it was the duty of said agent or servant, in charge of and operating said car, to have run and to have kept said car under such control as to have been able to bring the same to a full stop before striking a person or thing on the track; but plaintiff avers that on such occasion the agent or servant of defendant, in charge of and operating said car, ran the same at such a reckless and rapid rate of speed that he was unable to bring the same to a full stop before striking the plaintiff's horse and buggy, after he had discovered the said horse and buggy were on the track in a place of peril at or near the intersection of Pine avenue and Fifteenth street, whereby said car struck plaintiff's horse and buggy, and he was injured thus: Here follows a catalogue of the injuries to the person, horse, and buggy.

The grounds of demurrers are sufficiently stated in the opinion. The second, third, fourth, fifth, sixth, and seventh pleas were pleas of contributory negligence. The fifth, sixth, and seventh are failure to stop, look, and listen; the fourth, that plaintiff negligently drove his horse and buggy on said car track, and turned it up said car track towards the car, and that it was negligence on the part of plaintiff not to have driven across said track, and it was negligence to have driven on said track ahead of said car. The third plea avers the efforts to stop the car, and the failure to do so after using all means, and that before driving over defendant's driveway plaintiff failed to look for defendant's approaching car, and drove his said horse on the track ahead of said car. The second plea alleges that the street was wide enough where the collision occurred for plaintiff to have driven on either side of said track without injury, that the car was in plain view of plaintiff, that plaintiff could have stopped his horse and buggy until the car passed on, or that he could have turned the said horse and buggy up or down said street, with ample room to have avoided the collision, but that he did neither of these things, but negligently drove or allowed his horse to start across said track in front of defendant's car, and turned said horse and buggy towards said approaching car, which negligence proximately contributed to his injury.

Denson and Mayfield, JJ., dissenting in part.

Blackwell & Agee, for appellant.

Tate & Walker, for appellee.

McCLELLAN J.

The injury complained of was suffered by the plaintiff, in person and property, in consequence of the collision therewith of a street car then in operation on a public thoroughfare in the city of Anniston. The original complaint contained two counts, to which defendant's (appellant's) demurrers were sustained. After amendment, the complaint consisted of counts 1 to 4, inclusive. All, save the fourth, would found the liability of the defendant upon the breach of duty by the servant of the defendant, arising out of plaintiff's imperiled condition. The principle is familiar, and the sixteenth ground of the demurrer, addressed to these counts, takes the point that it is not averred that the servant in question knew of plaintiff's peril in time to have prevented the injury.

The relative rights of travelers in public streets and street cars operated therein have been defined as being equal, not exclusive, in favor of or against either. Schneider v Mobile L. & R. R., 146 Ala. 344, 40 So. 761. The exercise of the common right, by each, must be such as not to unreasonably hinder or endanger either in the use of the street; and upon the operative of the street car rests, as of course, the duty to be diligent in keeping a lookout for persons using the street and to bring to the operation of the car, under such circumstances, such measure of care and prudence as the common right enjoyed by the traveler and the street car suggest. This necessarily imposes upon the carrier the duty to operate its cars, in public streets, under such control, at such speed, as that, if persons or property be upon or dangerously near the track of the street railway, the car may be, with skilled application of stopping appliances, stopped, and injury thereto averted. But this duty is qualified to the extent that the operative of the car may assume that apparently adult persons, or property, such as horses and vehicles in the control of persons apparently adult, will leave, in time to avert injury, the track or dangerous proximity to it; but the stated qualification is also qualified by the requirement that the operative is forbidden to rely upon the stated assumption beyond the point where prudence and care would suggest the stopping of the car, such prudence and care being suggested, to a reasonably prudent man, by the reasonable appearance of inability upon the part of the party imperiled to remove himself or property from danger, or from such circumstances as would indicate, to the reasonably prudent operative, that the party imperiled, or likely to become so, is unconscious thereof. Schneider v. Mobile L. & R. R., supra. On the traveler upon the street the duty rests...

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    • United States
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    ...... giving the charge. Schmidt v. Mobile Light & R. Co., . 204 Ala. 694, 87 So. 181; Anniston Elec. & Gas Co. v. Rosen, 159 Ala. 203, 48 So. 798,. [100 So. 653.] Mobile L. & R. Co. v. ......
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