Armstrong v. Montgomery St. Ry. Co.

Decision Date30 June 1899
Citation26 So. 349,123 Ala. 233
PartiesARMSTRONG v. MONTGOMERY ST RY. CO.
CourtAlabama Supreme Court

Appeal from circuit court, Montgomery county; J. C. Richardson Judge.

Action by L. J. Armstrong, administratrix, against the Montgomery Street-Railway Company. From judgment for defendant plaintiff appeals. Reversed.

This action was brought to recover damages for personal injuries alleged to have been inflicted on plaintiff's intestate by reason of the negligence of the defendant or its employés and which resulted in the death of plaintiff's intestate. The complaint, as originally filed, contained six counts. It was subsequently amended by the addition of the sixth seventh, eighth, ninth, tenth, eleventh, and twelfth counts. Demurrers were overruled to the second, third, fourth, fifth seventh, eighth, ninth, tenth, eleventh, and twelfth counts, and it is therefore unnecessary to set out these counts at length.

The first, and sixth counts were in words and figures as follows: "(1) The plaintiff, L. J. Armstrong, suing as administratrix of the estate of Charles Armstrong, deceased, claims of the defendant, the Montgomery Street Railway, a corporation organized under the laws of the state of Alabama, the sum of $30,000, as damages, for this: That on, to wit, the 25th day of May, 1898, the defendant, engaged in operating by electric force a street railway, as a common carrier of passengers in and upon the streets of the city of Montgomery, in the state of Alabama, and said defendant then and there so negligently conducted said business that by reason of such negligence plaintiff's intestate, who was a passenger on one of defendant's street cars, received personal injuries which caused his death." "(6) The said plaintiff claims of the said defendant the sum of $30,000, as damages, for this: That on, to wit, the 25th day of May, 1898, plaintiff's intestate was a passenger on an electric street car which was being operated by the defendant in the city of Montgomery, in the state of Alabama; that, at the proper distance from the point of his destination, deceased gave the usual signal to stop the car, whereupon the motorman operating the car as the servant of the defendant slowed up the car, and stopped, or so nearly so as to render it reasonably safe for deceased to proceed to alight, whereupon deceased proceeded to alight, placing himself in a standing position on the platform or running board alongside the car for that purpose. At that moment a passenger on the car told the motorman that she, the said passenger, did not want to get off at that point, whereupon the said motorman, negligently failing to look and see whether deceased was in a place of danger, negligently applied the force and started the car with a sudden motion. Deceased then called out and warned said motorman that he was not off yet; but, knowing or having good reason to know of deceased's danger, said motorman negligently caused said car to take a second and violent motion forward on a downgrade, thereby throwing deceased violently from said car and inflicting personal injuries which caused his death." To the first count the defendant demurred upon the following grounds: "(1) Because the facts are not stated showing the defendant's negligence in conducting its business, as a result of which the injury to plaintiff's intestate was produced. (2) Said count fails to state the facts showing how, where, or in what manner the defendant was negligent, and as a result of which negligence the plaintiff's intestate was injured. (3) Said count of the complaint fails to state the name of the person or agent or employé of defendant alleged to have been guilty of negligence, by reason of which the plaintiff's intestate is alleged to have received the injury complained of, or that the name of such agent or employé was unknown to plaintiff." To the sixth count the defendant demurred upon the following grounds: "(1) Because it is not shown by said complaint whether plaintiff's intestate was injured by reason of attempting to get off the car after it had been stopped, or whether he attempted to get off while the car was moving, and before the same had stopped, and thereby received the injury complained of. (2) It is not shown by said count of the complaint that plaintiff's intestate informed defendant's motorman, J. C. Jolly, who was in charge of said car, that he desired to alight from or get off of said car before attempting to get off of the same." These demurrers were sustained, and the plaintiff separately excepted to the sustaining of the demurrers to each count.

In each of the fourth and fifth counts it was averred that defendant "negligently failed to employ a conductor to assist such motorman in operating defendant's street car by electric force." On motion of the defendant, these averments were stricken from each of the counts, and to this ruling the plaintiff duly excepted.

The twelfth count is set out in the opinion and the ruling of the court in striking the averments therefrom is also shown in the opinion. The defendant pleaded the general issue and several special pleas.

In the third plea it was averred that, at the time of the injury complained of, the plaintiff's intestate was riding on one of the defendant's cars, which was open and uninclosed on the sides, and on which there was what is known as a running board on either side of said car, placed there for the purpose of passengers getting on and off said car; that, while said car was in motion, the plaintiff's intestate got up from his seat, and, without any necessity therefor, got on the running board outside of said car, and, while standing thereon, he stepped off, jumped off, or fell off of said car, and that by reason of plaintiff's said intestate getting out of said car on the running board while the car was in motion, and by reason of his stepping, jumping, or falling off of said car while in motion, he fell down, and said fall contributed proximately to the injury complained of, which was the result of defendant's own negligence; "and defendant avers that, at the time of the injury complained of, the defendant's said car was provided with a bell with a cord affixed thereto for the use of passengers traveling on said car; and defendant avers that the said Armstrong, deceased, could, by pulling said cord, have rung the bell, and thereby notified defendant's motorman, who was at the time in charge of said car, operating it, to have stopped the same, and if the said Armstrong, deceased, had so rung the said bell, and had remained in his seat until the said car was stopped by the said motorman, he could have gotten off of said car in safety, and thereby have avoided the accident or injury complained of."

To the fourth plea the defendant averred "that, just preceding the time of the injury complained of, the plaintiff's intestate, Charles Armstrong, deceased, was riding on defendant's car, which was open or uninclosed on the sides, and that said car was provided with a bell for the use of passengers in riding on said car, and that there was a cord attached to said bell, so that, by pulling said cord, passengers could notify the motorman, by ringing the bell, that they desired to stop the car; and defendant avers that there were at the time posted in the car on which said Armstrong, deceased, was riding, and preceding the time of the occurrence of the injury complained of, the rules of the defendant, established for the government of the conduct of its passengers, and printed in large letters, and tacked up in said car, where said rules were open to view and were seen or could have been seen by the said Armstrong, deceased, by the use of ordinary prudence or care; and defendant avers that the said rules were reasonable in the requirements therein contained of passengers while riding on defendant's car." There is then set out in said plea the rule referred to, which prohibited passengers from entering or leaving said car while in motion, and provides that the company shall not be responsible for injury resulting from direct violation of the rule. The said plea then continues as follows: "And defendant avers that the plaintiff's intestate violated said rules, in that he did not remain inside the said car until it (the car) came to a full stop, and by leaving or attempting to leave the defendant's car while it was in motion; and defendant avers that, by the violation of said rules of defendant, the plaintiff's intestate was guilty of negligence which proximately contributed to the injury complained of, in that he got on the step on the outside of said car before it stopped, and he attempted to leave and did leave or get off defendant's car while it was in motion, and running at a rate of speed of, to wit, four or five miles per hour, and plaintiff's intestate fell, and the injury complained of was inflicted by reason of said fall, and was the proximate result of the action and conduct of plaintiff's intestate in violating defendant's rules as aforesaid, which were posted in said car, and in attempting to get off or getting off said car while the same was running and in motion, and without waiting for the car to stop before getting out of or off of said car." The plaintiff moved to strike from the defendant's said third plea the portion thereof which is quoted above, upon the ground that it was not averred that the plaintiff's intestate did not ring the bell as a signal for the motorman to stop the car, and that his failure to do so contributed proximately to the injury complained of. This motion was overruled, and the plaintiff duly excepted.

The plaintiff then demurred to the third plea upon the following grounds: "(1) Because the facts set up therein in the alternative do not show any negligence on the part...

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