Birmingham Elec. Co. v. Woodward

• Decision Date: 06 April 1948
• Docket Number: 6 Div. 486.
• Citation: 33 Ala.App. 526,35 So.2d 369
• Parties: BIRMINGHAM ELECTRIC CO. v. WOODWARD.
• Court: Alabama Court of Appeals

35 So.2d 369

33 Ala.App. 526

BIRMINGHAM ELECTRIC CO. v. WOODWARD.

6 Div. 486.

Alabama Court of Appeals

April 6, 1948

Rehearing Denied May 11, 1948.

Huey, Welch & Stone, of Bessemer, for appellant.

Ross Ross & Ross, of Bessemer, for appellee.

The following charges were refused to defendant:

'5. The court charges the jury if you are reasonably satisfied by the evidence in this case that on the occasion complained of that the street car operated by the Defendant at such time and place was equipped with center doors known as safety doors and that such doors were so constructed that the car could not be moved without such doors being completely closed and you are further reasonably satisfied by the evidence that if the Plaintiff's foot was between said doors on said occasion that the street car could not be moved, then I charge you that the Plaintiff cannot recover and your verdict should be for the Defendant.'

'6. The court charges the jury that if you are reasonably satisfied by the evidence in this case, that the street car that is alleged to have been involved in the accident complained of was equipped at the center thereof with safety doors which said doors were so constructed as to prevent the street car from being put in motion until completely closed and which doors on being closed struck any object such as the size of one's foot or ankle that said doors would fan then back open and continue to so fan until the object they struck was removed and that while standing and striking such object said street car could not be moved and you are further reasonably satisfied that the force of such doors against such object was insufficient to injure the same, then I charge you that the Plaintiff cannot recover and your verdict should be for the Defendant.'

HARWOOD Judge.

In the trial below the plaintiff, appellee here, gained a verdict and damages in the amount of $500.

On submission of defendant's motion for a new trial the court below ruled that such sum was excessive by the amount of $75, and required a remittitur of $75 as a condition to overruling the motion. Such remittitur being filed the court overruled said motion.

The original complaint contained two counts, one alleging simple negligence, and the other wanton. Pleading was in short by consent. Only the simple negligence count was submitted to the jury by the court.

Evidence submitted by the plaintiff tended to show that as she left one of the defendant's cars on the North Bessemer line by the rear, or middle door, the door fanned shut before she was out of the car, caught her right foot, and dragged her a short distance, resulting in the injuries complained of.

The defendant introduced the operators of the only three cars which ran by the stops on the day and during the time alleged by the plaintiff to have been the approximate time of her ride on one of the defendant's cars. All three operators denied that any accident of any sort had occurred during these runs.

This conflict in testimony of course created only a question of fact for the jury.

It is clearly to be inferred from the evidence that the plaintiff if injured as she asserted, was injured while disembarking from one of the defendant's cars belonging to the 400 series.

The defendant's witnesses offered testimony to the effect the doors on the 400 series cars and the 500 series were safety type doors that fanned open and shut. A two inch rubber gasket ran down the outer edges of each door, and when these doors fanned shut and caught any object as large as a human wrist between the gaskets they would automatically fan back open.

Mr. R N. Pounders, one of defendant's witnesses, testified that neither the 400 series nor the 500 series type cars could start while the rear door was open.

Mr. Thornton, another witness for the defendant, testified: 'You operate the 576 to 596 and it will start with front door open; but on the magnet type they won't start with the front door open.'

In this connection it should be noted that Mr. King, a witness for the defendant, testified that cars of the 400 series are the cars regularly used on the North Bessemer line, and some of 500 series are used as relief cars, and he would say 501, through 505, 508, 511, 517, and 520 were the ones so operated on the North Bessemer line during July 1946, the month of this alleged accident; that 570 through 596 were put on the North Bessemer line in case of emergency, but the 500 series cars were regularly and ordinarily used on the South Bessemer line.

Again according to Mr. King the difference in the operation of the doors of the two respective series of cars in that 'The North Bessemer works on magnets, and the South Bessemer works by air.' On both types of cars the doors are supposed to be closed before the car starts.

In rebuttal the plaintiff introduced as a witness Mr. W. L. Baxley who testified that during the noon recess the day this case was being tried he accompanied plaintiff's attorney and observed defendant's car No. 596 in operation on the South Bessemer line. In connection with Mr. Baxley's testimony the record shows the following:

'Q. I will ask you to tell the jury whether or not that street car would start with those doors open?

'Mr. Stone: Don't answer that. We object to that, if your Honor please. It is an observation made months after the alleged accident complained of. It is not shown that it was even on the same line. It is not shown that it was the same type of car involved in the accident complained of. It is not shown that the car that they saw was equipped in the same manner as the cars were equipped several months ago at the time of this alleged accident. There is no evidence here that the South Bessemer car line were equipped or operated in the same manner as the North Bessemer car line.

'The Court: Overruled.

'Mr. Stone: We except.

'Mr. Ross: Read the question. (Question read.)

'A. Well, now, I don't know whether I could tell what it would do. I could tell you what it didn't do. The doors were closed after the cars started. I watched going down there and coming back, and they would open the doors. Of course, they let the passengers on and off, and then, of course, the cars usually started, and also, the doors would be closed, and the doors would close after the cars started. If that is what you want. That is the best I know how to tell that. I can't say what every car would do. You asked about this particular car. That is what this one done.

'Q. And that particular car was No. 596? A. 596.

'Q. I will...