Birmingham Elec. Co. v. Guess

• Decision Date: 30 October 1930
• Docket Number: 6 Div. 561.
• Citation: 131 So. 883,222 Ala. 280
• Parties: BIRMINGHAM ELECTRIC CO. v. GUESS.
• Court: Alabama Supreme Court

131 So. 883

222 Ala. 280

BIRMINGHAM ELECTRIC CO. v. GUESS.

6 Div. 561.

Supreme Court of Alabama

October 30, 1930

Rehearing Granted Nov. 28, 1930.

Further Rehearing Denied Jan. 29, 1931.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages for personal injuries by Esther Mae Guess, a minor, suing by her next friend, Mrs. Ella Guess, against the Birmingham Electric Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded on rehearing.

Wantonness by servant operating street car must be based on actual knowledge.

Count A of the amended complaint is as follows:

"Plaintiff who is a minor and who sues by next friend Mrs. Ella Guess claims of the defendant as damages the sum of Twenty-Five Thousand ($25,000.00) Dollars for that heretofore on to-wit the 17th day of December, 1928, defendant was engaged in the business of operating by electricity a system of street cars for the carriage of passengers for hire in the city of Birmingham, Jefferson County, Alabama, and on said date plaintiff was a passenger on one of defendant's street cars. Plaintiff avers while a passenger on one of defendant's street cars aforesaid, she was thrown violently against the floor and other parts of said car, greatly and permanently injuring plaintiff's back, hips and lower limbs, causing plaintiff to suffer great physical and mental pain, to be confined for a long period of time in bed and in her room, causing plaintiff to continue to suffer great and intense pain, rendering plaintiff permanently less able to work and earn her livlihood.

"Plaintiff avers that she received her said injuries and damages as a proximate consequence of the willful or wanton conduct of defendant's said servants or agents in charge and control of defendant's said street car on which plaintiff was a passenger, while acting within the line and scope of their employment as said agents or servants of defendant, in this:

"Said servants or agents of defendant's without warning or notice to plaintiff, a passenger, while plaintiff was in the act of alighting from said street car as said passenger, while said street car was standing at one of its usual places for discharging passengers, while the doors of said street car were open, and while passengers were alighting, suddenly and violently started said street car while plaintiff was in the act of stepping from said street car, and while in a position rendered highly dangerous in the sudden and violent starting of said street car, which facts and conditions were known to defendant's said servants and agents in charge and control of said street car, notwithstanding said knowledge on the part of defendant's said servants and agents, said car was suddenly started as aforesaid by said agents, well knowing that so to do, would likely or probably result in injury or death to plaintiff, and with reckless disregard to the consequence."

The bill of exceptions shows that during the opening statement of the case to the jury by counsel for the plaintiff (Mr. Smith), the following occurred:

"Mr. Smith: *** Now, Brother Simpson [counsel for defendant] said something about her not telling who was along with her on this occasion. Now, gentlemen of the jury, the law doesn't require that she tell them who her witnesses are.

"Mr. Simpson: Now, may it please the Court, I am going to object to Mr. Smith arguing the law to the jury.

"The Court: Sustained.

"Mr. Smith: We except. Now, it is a matter of common knowledge that the Birmingham Electric Company has the most wonderful system of getting witnesses that is known.

"Mr. Simpson: I object to that and ask for a mistrial.

"The Court: If the basis of that argument continues the Court will declare a mistrial. It is improper, I think, in the statement of the case to argue it. I think that is an improper statement.

"Mr. Simpson: We except."

Plaintiff, as a witness, testified that she was seated on "that little long seat" in the back of the street car, on the left side coming into the car from the back; that at Second avenue and Twentieth street the car pulled up and stopped behind another car; that the doors of the car were open and passengers getting on and off; that she started to get up and get off, and when she got to the rear of the car it jerked and made her fall across an iron piece (the step up), with her back across it; that she was just a few steps back from the step-off place when the car started off; that "the car usually starts off with a sudden jerk" and she didn't think she "ever rode the car when it didn't"; that on this particular morning it started with a sudden jerk; that she tried to brace herself, but in trying to do so she was thrown, her feet flying up and her back hitting the iron piece. She further testified that she did not know whether there was a motorman on the car; that she saw none, having entered the car from the rear; that a conductor was standing near her when she fell, and he picked her up; that the motorman nor any one in charge of the car gave her any notice by word of mouth or ringing of the bell that the car was going to start; and that the gates were open when she started to get off. She further testified that she was taken to a physician's office, where her back was dressed and plaster put on it; that she was carried home in a cab and was confined to her bed for a week; that she was hurt across the small of her back, "bruised up awful bad across there," hurt at the end of her backbone, and both ankles and left wrist sprained pretty badly; that she suffered pain at the time and since; that strappings put on by the physician stayed on for two or three weeks or a month; that she went to work and stayed for a few days, but then had to go back home and stay in bed a day before going back to work.

The witness Miss Satterfield testified that when the car started on this occasion she was getting ready to get off and was down in the vestibule; that the car jerked and she grabbed hold of a rod; that "there wasn't any signal that I (she) know of for the car to start, it just jerked-started up"; that she was not looking at plaintiff when she fell; that she (witness) was getting off; but that when she first saw plaintiff after the car started she was lying with her back on the iron piece.

Evidence on behalf of defendant tended to show that plaintiff tripped and fell to her hands and knees while the car was motionless; that the car did not start off while passengers were getting on and off, and there was no movement or jerk forward at the time the plaintiff fell; and that the motorman knew nothing of plaintiff's presence or position or movements at the time of the accident.

Defendant's witness Sanders, conductor on the car, testified that he did not know that plaintiff fell on the iron piece, but that she was lying close to it, and after she was picked up complained that her back was hurt.

The following charges were refused to defendant:

"39. If you believe the evidence in this case and you are reasonably satisfied therefrom that the jerk or sudden start of the street car complained of by the plaintiff is the same jerk or sudden start that it is necessary for street cars to make in order to start, your verdict must be in favor of the defendant."

"40. The Court charges you that if you are reasonably satisfied from the evidence that the movement or motion of the car complained of by the plaintiff was the usual, ordinary movement or motion of a car, your verdict must be in favor of the defendant."

"41. The Court charges you that it is not every sudden start or movement of a street car that would render the defendant liable, but only those unusual and unnecessary movements."

"42. The Court charges you that even though you are reasonably satisfied from the evidence that the defendant's street car moved forward suddenly or jerked, but that this movement described by the plaintiff and complained of by her was one usual and ordinary in the careful, skillful and diligent operation of street cars, then your verdict must be in favor of the defendant."

The jury returned a verdict for plaintiff for $3,500. Defendant filed a motion for new trial. Thereafter the judgment was reduced to $2,500, and the motion for new trial was overruled.

Lange, Simpson & Brantley and Memory L. Robinson, all of Birmingham, for appellant.

B. F. Smith, of Birmingham, for appellee.

THOMAS J.

The count as amended was free from the ground of demurrer that the facts averred did not sustain the charge of wantonness or willfulness as stated in the appropriate count. Blackburn v. Central of Ga. Ry. Co., 185 Ala. 635, 64 So. 592; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469.

There was, however, no ambiguity and uncertainty in the averment of facts employed in the complaint and the use of the words "said servants and agents"; there was no mention of servants or agents thereto to cause confusion, and "said" was capable of being omitted because of the want of an antecedent to which it may refer with uncertainty as to which of defendant's...