Best Park & Amusement Co. v. Rollins

Decision Date22 April 1915
Docket Number47
Citation68 So. 417,192 Ala. 534
PartiesBEST PARK & AMUSEMENT CO. v. ROLLINS.
CourtAlabama Supreme Court

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by Hattie Rollins against the Best Park & Amusement Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Transferred from Court of Appeals under section 6, Acts 1911, p. 449.

Defendant was the proprietor of an amusement park, and operated what is known as a scenic railway. The cars were about six feet long and when raised by a cable to the highest point, are allowed to run by gravity over a track that winds and doubles back and dips throughout its extent of about 2,300 feet. The track begins on a trestle about 40 feet high, and is continuously downgrade. The cars make the trip in about a minute and a half. Plaintiff was riding on one of these cars when it ran into another car at the bottom of the dip, which had for some reason failed to go over the incline just ahead, as it was designed and accustomed to do. The collision resulted according to plaintiff's evidence, in physical injury to her, and on the evidence adduced the jury rendered a verdict for plaintiff, and there was judgment accordingly. The opinion fully discusses the only errors assigned.

Burgin Jenkins & Brown, of Birmingham, for appellant.

Gaston Pettus & Drennen, of Birmingham, for appelle.

SOMERVILLE J.

Conceding that the complaint in this case was defective in not showing that defendant's servants were guilty of the negligence charged while acting within the scope or course of their employment, we think that the specifications of the demurrer do not sufficiently point out this defect. The only grounds supposedly in point are: (2) That no negligence is shown for which defendant is liable; and (5) that it is not shown how or wherein defendant's servants were negligent. These grounds are very general in their terms, and are at least of ambiguous application.

Moreover, the written charges of defendant (Nos. 2, 7, 15, 16, 17, and 18) specifically required proof by plaintiff of the omitted allegation. This cured the error on the pleading, if there was any, and, under our Practice Rule No. 45 (61 South. ix), forbids a reversal of the judgment on that ground.

In his oral charge to the jury the trial judge instructed them, without objection from defendant, that the relationship of the parties was that of common carrier and passenger, and that defendant owed her the duty to exercise the highest degree of skill and care (for her protection and comfort while she was a passenger on its car) known to common carriers of passengers. Afterwards, at the instance of plaintiff, he gave the following written charge:

"The law imposes upon a common carrier of passengers for hire or reward the duty of exercising the highest degree of care and skill known to persons engaged in the business of common carriers, and holds such common
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79 cases
  • Adler v. Miller
    • United States
    • Alabama Supreme Court
    • June 7, 1928
    ... ... complaint for the rule of Best Park & Amusement Co. v ... Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas ... ...
  • J. H. Burton & Sons Co. v. May
    • United States
    • Alabama Supreme Court
    • January 22, 1925
    ... ... 469; ... Sov. Camp. v. Ward, 201 Ala. 446, 78 So. 824; ... Best Park & Amusement Co. v. Rollins, 192 Ala. 534, ... 68 So. 417, Ann.Cas ... ...
  • Gomez v. Superior Court
    • United States
    • California Supreme Court
    • June 16, 2005
    ...or train.5 Other jurisdictions agree with the rule adopted in California. The Alabama Supreme Court in Best Park & Amusement Co. v. Rollins (1915) 192 Ala. 534, 68 So. 417, 418, followed the decision of the Illinois Supreme Court in O'Callaghan v. Dellwood Park Co., supra, 242 Ill. 336, 89 ......
  • Pointer v. Mountain Railway Construction Co.
    • United States
    • Missouri Supreme Court
    • December 4, 1916
    ...694; O'Callaghan v. Dellwood Park Co., 242 Ill. 336, 345, 89 N.E. 1005; Tenn. State Fair Assn. v. Hartman, 183 S.W. 735; Best Park & Amusement Co. v. Rollins, 68 So. 417; Beach Ry. Co. v. Brez, 39 App. D.C. 58.] Hence the only question is whether any phase of the evidence adduced by plainti......
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