Birmingham Electric Co. v. Jones, 6 Div. 9

• Decision Date: 28 June 1937
• Docket Number: 6 Div. 9
• Citation: 234 Ala. 590,176 So. 203
• Parties: BIRMINGHAM ELECTRIC CO. v. JONES.
• Court: Alabama Supreme Court

176 So. 203

234 Ala. 590

BIRMINGHAM ELECTRIC CO. v. JONES.

6 Div. 9

Supreme Court of Alabama

June 28, 1937

Rehearing Denied Oct. 14, 1937

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Suit for damages for personal injuries by B. Clay Jones against the Birmingham Electric Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Huey &amp Welch, of Bessemer, for appellant.

Chas W. Greer, of Birmingham, and Arthur Green, of Bessemer, for appellee.

BOULDIN Justice.

Action for personal injuries to a pedestrian struck by a passing street car.

Count B of the amended complaint, on which the case went to the jury alleges that the defendant, a common carrier of passengers for hire, was operating electric street cars on the streets of the city of Bessemer, upon tracks imbedded in the streets at grade; that at the "intersection of Nineteenth Street and Carolina Avenue, and while plaintiff was then and there on foot waiting to take passage upon said car as a passenger at a point at said intersection, which was a customary and regular stopping place for said cars of the defendant, the defendant did so negligently run and operate one of its said cars, namely, the South Bessemer car, that the same ran into, upon or against the plaintiff and as a proximate consequence thereof inflicted upon him the following injuries and damages."

This count disclosed a common right of pedestrians and the street car company to the use of the street, including the zone occupied by street cars in passing, each owing the duty of ordinary care. That plaintiff was on the street to take passage on the car does not negative such general duty, but rather the occasion for the exercise of such care, if any, as may be due an intending passenger.

When a duty of care is disclosed, a general averment of negligence is sufficient. The quo modo need not be averred. This form of complaint has been approved in street car cases. Birmingham Railway, Light & Power Co. v. Fox, 174 Ala. 657, 56 So. 1013; Birmingham Railway Light & Power Co. v. Bush, 175 Ala. 49, 56 So. 731; Birmingham Railway, Light & Power Co. v. Ryan, 148 Ala. 69, 41 So. 616; Alabama Power Co. v. Bass, 218 Ala. 586, 119 So. 625, 63 A.L.R. 1.

Appellant relies upon a line of cases wherein the complaint affirmatively showed plaintiff was a trespasser, one to whom the defendant owed no general duty to conserve his safety; and no liability arises save for wanton injury or negligence after discovery of peril.

In such cases, it has been held, a general averment of simple negligence, one not disclosing a relation bringing him within the protection of the law as against the negligence averred, is subject to appropriate demurrer. These cases are differentiated in the Fox Case, supra.

Count B does not show plaintiff to have been a trespasser, but, to the contrary, shows defendant owed him the duty of ordinary care due to all pedestrians, if no other growing out of the plaintiff's position as an intended passenger.

Contributory negligence is matter for special plea. There was no error in overruling the demurrer to count B.

The major question on this appeal is whether defendant was due the affirmative charge on the evidence.

The place of the accident was at the intersection of Nineteenth street and Carolina avenue. The street car came west on Carolina avenue and turned north on Nineteenth street. Plaintiff was struck by the rear end of the street car as it rounded the curve; a point where the rear end had an outswing or overhang of some two and one-half feet in excess of the overhang on a straight track. Nineteenth street was a paved street of rather heavy traffic. Carolina avenue coming in from the east was surfaced with chert. The intersection was paved, extending to the east line of connecting sidewalks on the east side of Nineteenth street, so that pedestrians could go straight across on a pavement.

This was a regular scheduled stopping place to receive and discharge passengers. Owing to the traffic conditions and the accommodation of passengers in all kinds of weather, the regular stopping place was to bring the front end of the car to or about the edge of the pavement and to receive and discharge passengers at the front end of the car. Doors for this purpose were provided on the right hand side at front and rear.

There was a front door on the left to be used, primarily at least, by the employees of the defendant. A rule of the company forbade the taking on of passengers on the blind side of the car.

The plaintiff's evidence tended to show that for many months passengers had been frequently admitted by this left front door, and on two former occasions, he had been so admitted.

Plaintiff's evidence tends to show that on the occasion of his injury, he had waited some time on or about the corner south of the stopping point; that on the approach of the car he walked north on the pavement to a point some three feet from the south rail of the track, where he stopped and gave a signal by waving the hand while the car was about 100 feet from the stopping place, that the motorman answered the signal by whistle, and slowed down the car as if to stop, reducing the speed to about five miles per hour, but did not stop. Instead, he suddenly turned on the current, speeded up the car to about ten miles per hour, as it passed him. The rear end of the car struck him as he was turning to walk away. It was at night. The crossing was well lighted. The street car was running behind scheduled time.

Defendant's evidence was to the effect that the car did stop, that a passenger alighted therefrom, that plaintiff did not take the position claimed by him, nor give any signal as the car approached, did not present himself as a passenger, but after the car started up walked into the danger zone and was struck by the rear end of the car.

As for these issues of fact, there was presented a clear case for the jury, unless under either version plaintiff was not entitled to recover as matter of law.

Appellant's view is that the affirmative charge was due defendant upon two grounds:

1st. That the evidence, as a whole, disclosed no negligence, no breach of duty on the part of the motorman, as the proximate cause of the injury.

2d. That as matter of law plaintiff was guilty of negligence proximately contributing to his injury, and barring a recovery.

Many cases are cited and discussed in briefs involving injuries from the outswing of a street car on a curve. These cases involve many varying conditions. Some deal with pedestrians, or vehicles using the street alongside the zone occupied by a street car passing on a curve. Others deal with alighting passengers, and a few with persons preparing to take passage.

The cases are reviewed in a note found in 55 A.L.R. 479, et seq. Subsequent decisions are collated in A.L.R. Blue Book, 1936 Revision.

In the absence of special circumstances, we think the law is well stated in Miller v. Public Service Corp., 86 N.J.Law, 631, 92 A. 343, L.R.A.1915C, 604, as follows: "The rule approved by the weight of authority is that, in view of the well-known fact that in rounding a curve the rear end of a street car will swing beyond the track, and overlap the street to a greater extent than the front, the motorman may rightfully assume that an adult person, standing near the track, who is apparently able to see, hear, and move, and, having notice of the approach of a street car, and of the existence of the curve, will draw back far enough to avoid being struck by the rear of the car as it swings around the curve in the usual and expected manner, and therefore no legal duty is imposed upon the motorman to warn such a person against the possible danger of a collision with the rear, because of the swing, if he remains in the same position."

This principle is recognized in our cases. Hamilton v. Birmingham Ry. L. & P. Co. 198 Ala. 630, 73 So. 950; Ross v. Brannon, 198 Ala. 124, 73 So. 439; Williford v. Atlantic Coast Line R. Co., 216 Ala. 309, 113 So. 44.

Such adult persons are chargeable with knowledge of an outswing of the rear end of a street car in general use when rounding a curve. The motorman has a duty to keep a lookout ahead, cannot well look out for people coming in contact with the side of the car. The law, therefore, casts on the pedestrian the duty of care to keep out of danger of such outswing from ordinary movements of the car. The rule applies to alighting passengers after they have reasonable time and opportunity to alight and remove from the zone of danger; and to intending passengers as regards the passing of the car while coming to a stop.

But, as in all cases, the general duty of ordinary care does obtain where the conditions known to the motorman, or which he is under duty to know, call for measures to safeguard the safety of alighting or prospective passengers.

A duty to an alighting passenger is to give reasonable time to alight and get out of the zone of danger. If hinderances are apparent, these must be regarded. Wilson v. International R. Co., 205 A.D. 275, 199 N.Y.S. 562; Virginia Trust Co. v. Raymond, 120 Va. 674, 91 S.E. 613; White v. Connecticut Co., 88 Conn. 614, 92 A. 411, L.R.A.1915C, 609; Lyons v. Pittsburgh Rys. Co., 301 Pa. 499, 152 A. 687; Jamieson v. Pittsburgh Rys. Co., 309 Pa. 197, 163 A. 292.

So a duty to safeguard an intending passenger against injury from overhang at a curve is recognized in a number of cases. Dwyer v. Los Angeles Ry. Corp., 115 Cal.App. 709, 2 P.2d 468; Heva v. City of Seattle, 150 Wash. 61, 272 P. 41; Lasater v. Conestoga Traction Co., 306 Pa. 500, 160 A. 447; Laurent v. United Rys. Co. (Mo.Sup.) 191 S.W. 992.

This principle is recognized in Montgomery Light & Traction Co. v....