Birmingham, E. & B.R. Co. v. Feast

• Decision Date: 22 April 1915
• Docket Number: 934
• Citation: 68 So. 294,192 Ala. 410
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM, E. & B.R. CO. v. FEAST.

68 So. 294

192 Ala. 410

BIRMINGHAM, E. & B.R. CO. v. FEAST.

No. 934

Supreme Court of Alabama

April 22, 1915

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Joseph A. Feast, pro. ami, against Birmingham, Ensley &amp Bessemer Railroad Company, for damages suffered at a crossing. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 3 avers, in effect, the defendant was operating an interurban railway in Jefferson county, which ran along the public street known as Fifth avenue in the city of Birmingham, and that plaintiff was lawfully, rightfully, and properly attempting to cross the said public street at a public street crossing, namely, Twentieth street, and that defendant's servants or agents were then and there engaged in and about the business of operating a street car over and along the said street, and above and upon said crossing, and the said servants or agents in charge or control of said car negligently permitted the same to run over, upon, or against plaintiff while he was upon said public street at said public crossing as aforesaid, thereby inflicting the following injuries (which are set out), and plaintiff avers that his said wounds and injuries were the proximate consequence and caused by reason of the negligence of such servants or agents. The demurrers were that the road was not on grade with the street; not averred or shown that plaintiff's injuries resulted proximately from the negligence complained of; no causal connection was shown between the injury and the way in which the car was alleged to have been operated; and some others relative to the charges of wantonness.

The following is the oral charge of the court which is excepted to:

The motorman is also required to operate his car under such speed and with such control that, if persons or property be upon or dangerously near the track of a street railway, the car may be, with skillful application of stopping appliances stopped and injury thereby averted. It is the duty which the motorman of defendant company in operation of the car at this place and at that time owed the people who were using this street.

The second assignment of error is as follows (to the oral charge):

*** But in regard to a child of tender years, that is, under seven years old, he has no right to assume that a child of such tender age, who is seen on or in such dangerous proximity, the law requires him at once to put his car under such control as to immediately stop it, if that becomes necessary to avert the injury; in other words, and, if you are reasonably satisfied from the evidence in this case that the motorman saw the child on the track or in dangerous proximity to the track, then it became his duty at once to put his car under such control as to be able to immediately stop it, if it was necessary to do that in order to avert injury.

The following is charge A:

I charge you that, while it is the duty of defendant's motorman to exercise reasonable care while approaching and along past the point of injury, yet I charge you that the streets of the city of Birmingham at the point of injury are not intended for use as a playground for children, and the motorman is not under the duty of controlling his car to the degree which might be reasonable in approaching and passing

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