Birmingham Elec. Co. v. Latham

• Decision Date: 30 October 1947
• Docket Number: 6 Div. 507.
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM ELECTRIC CO. v. LATHAM.

32 So.2d 515

249 Ala. 592

BIRMINGHAM ELECTRIC CO. v. LATHAM.

6 Div. 507.

Supreme Court of Alabama

October 30, 1947

Lange Simpson, Robinson & Somerville, of Birmingham, for appellant.

Clifford Emond, of Birmingham, for appellee.

BROWN Justice.

This is an action on the case by the appellee, a passenger, against the Birmingham Electric Company, a carrier of passengers, to recover damages for personal injuries suffered as a proximate consequence of the negligence of the defendant's agent or servant abandoning the car on which the plaintiff and others were passengers, leaving no person in charge, in consequence of which the street car ran wild down a grade colliding with an automobile and eventually leaving the track.

The single count on which the case was tried catalogues plaintiff's damages as follows: 'Her back, arms sides, limbs, head and other parts of her body were bruised contused, sprained, strained and injured. Plaintiff was internally injured and was made sick and sore and ill for a long period of time. Plaintiff was caused to suffer great physical pain and mental anguish. Her nervous system was greatly shocked and impaired and plaintiff was put to much expense in and about her efforts to heal and cure her said wounds and injuries and was caused to lose time from her employment and to sustain loss of earnings thereby. * * *.' The trial resulted in a judgment for plaintiff assessing her damages at $2,500 from which the defendant has appealed.

The only points raised on this appeal relate to the amount of verdict, the argument of plaintiff's attorney to the jury, and the refusal of Charge 19, requested by the defendant, dealing with the question of damages.

The evidence goes to show that the operator of the street car in which plaintiff and others were passengers stopped the car on a down-grade and abandoned it without any other person in charge or control of its operation. After such abandonment, the car rolled down a long grade increasing in momentum until it ran off the end of the tracks and crossed over the tracks on First Avenue coming into contact with a parked automobile near the street curbing. The street car gained such momentum as it passed around a curve that it threw plaintiff over the head of some other passengers and she fell upon the floor, inflicting upon her personal injuries. She was eventually thrown or fell from the car onto the ground or pavement and was picked up, rolled in a blanket and carried to the hospital, where she was treated by the defendant's physician. Plaintiff testified: 'I stood up to hold it was going so fast, and when it struck something, I don't know what, it just slammed me back--against the car--and then I fell, and that is the last I knew until I was on the ground and they were taking me up. I was...