Birmingham Electric Co. v. Cleveland, 6 Div. 686

CourtSupreme Court of Alabama
Writing for the CourtSAYRE, J.
Citation113 So. 403,216 Ala. 455
Docket Number6 Div. 686
Decision Date05 May 1927
PartiesBIRMINGHAM ELECTRIC CO. v. CLEVELAND.

113 So. 403

216 Ala. 455

BIRMINGHAM ELECTRIC CO.
v.
CLEVELAND.

6 Div. 686

Supreme Court of Alabama

May 5, 1927


Rehearing Denied June 23, 1927

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for personal injuries by D.F. Cleveland against the Birmingham Electric Company. From a judgment for plaintiff for $15,000, defendant appeals. Affirmed conditionally.

Anderson, C.J., dissenting. Somerville and Gardner, JJ., dissenting in part.

The credibility of witnesses is a question for the jury. [113 So. 404]

The refused charges, made the basis of assignments of error 13, 14, 15, 16, 17, and 20, are as follows:

(13) "If you believe from the evidence that the defendant's said car was stopped for a sufficient length of time for passengers to board same, and the gates of the car were then closed, and the car thereafter started without said agents of the defendant, in charge of said car, knowing or having been charged with the knowledge that injury would probably or likely result to plaintiff as a proximate result of the closing of said gates and the starting of said car then plaintiff cannot recover in this case."
(14) "Unless you believe from the evidence in this case that defendant's servants or agents in charge of the street car, on the occasion complained of, knew or were chargeable with knowledge that the plaintiff was attempting to get on defendant's said street car, then the plaintiff is not entitled to recover in this case."
(15) "The court charges the jury that the agents of the defendant, on the occasion complained of, were not under the absolute duty to see and know that no passengers were boarding or attempting to board the car before closing the gates and starting the car forward, but they were only under the duty to stop the car a reasonably sufficient length of time for passengers to board same, and if you believe from the evidence that said agents or servants had stopped the car on said occasion a reasonably sufficient length of time for passengers there present to board the said car and thereafter closed the gates of the car and started the car without knowing with exercise of the highest degree of care, skill and diligence that injury would probably or likely result to plaintiff or to some other person then attempting to board said car, then the plaintiff cannot recover in this case."
(16) "If you believe from the evidence that defendant's servants or agents in charge of [113 So. 405] defendant's said car, on the occasion complained of, did not have any notice or knowledge that plaintiff was attempting to embark on defendant's said car, then you cannot find for the plaintiff, under count 3 of the complaint as amended."
(17) "If you believe from the evidence that defendant's car, on the occasion complained of, was stopped a reasonably sufficient time for passengers to board the said car, and thereafter the said car was started without the defendant's said agents knowing or being chargeable with knowledge that the starting of said car would probably result in some injury to a passenger then in the act of boarding said car, then plaintiff cannot recovery under count 3 of the complaint as amended."
(20) "Unless you believe from the evidence that plaintiff was accepted by the defendant's agent or servant in charge of said car, on the occasion complained of, as a passenger, then he cannot recover in this case."

Bradley, Baldwin, All & White, John S. Coleman, and T.A. McFarland, all of Birmingham, for appellant.

Altman, Taylor & Koenig, of Birmingham, for appellee.

SAYRE, J.

To state the case very briefly, plaintiff's (appellee's) version is that defendant's electric street car stopped at a customary place of stopping where he awaited it to take passage, that he waited until a number of passengers alighted, after which, with reasonable expedition, attempting to get aboard, he reached up and caught some part of the door of the car, whereupon the door was closed, catching his hand, and the car moved ahead, dragging him along until he was thrown against an iron post, causing the various injuries described in count 1 of the complaint. The charge was that this was negligently done. The evidence supported this theory of the case, and the jury returned a verdict accordingly.

The case went to the jury on the third count of the complaint charging simple negligence. That count, for a description of the injuries suffered by plaintiff, referred to and adopted the allegations of count 1. Count 1, among other elements of damage, alleged that plaintiff was "permanently injured and *** his nervous system was greatly shocked and impaired and permanently shocked and impaired *** and [he] was made permanently sick and ill." Appellant, defendant, contends that the trial court committed error in that part of its oral charge in which the jury were told that, if plaintiff was entitled to recover, they might assess damages to compensate him for, among other things, "any impairment of his earning capacity." Defendant does not concede that the complaint claimed damages for impaired earning capacity. In this connection we are referred to B.R.L. & P. Co. v. Colbert, 190 Ala. 229, 67 So. 513, and Sloss-Sheffield Co. v. Thomas, 202 Ala. 231, 80 So. 69. The opinion in the first named case was written upon the distinctly stated assumption that the complaint claimed damages for "decreased earning capacity." But a statement was interposed "with the purpose of averting the committal of this court, in any degree, or by any implication, to the proposition that loss of time and decreased or diminished earning capacity, as elements of damages in action for personal injuries, are synonymous." It is now and here freely conceded that there is a substantial difference between "loss of time" and "decreased earning capacity," which must be observed in actions of this kind. But we are unable to agree that Dowdall v. King, 97 Ala. 635, 12 So. 405, or Slaughter v. Met. St. Ry. Co., 116 Mo. 269, [1] cases cited in the Colbert Case, supra, have any relation to the question presented in this case, viz., whether, under an allegation of permanent injury of a sort naturally calculated to impair earning capacity, recovery may be had for decreased earning capacity in the absence of an express statement in the complaint that plaintiff's earning capacity has been impaired. It must be conceded, however, that in Sloss-Sheffield Co. v. Thomas, supra, the opinion in the Colbert Case was cited to the proposition that damages for decreased earning capacity were not recoverable, notwithstanding the complaint in the case then under consideration (Thomas Case) alleged permanent injury, referring, it would seem from the report of the case, to the allegation that plaintiff's "legs were broken, his jawbone broken, and he was otherwise bruised and injured." In Dowdall v. King, supra, Stone, C.J., said:

"The plaintiff is not entitled to be redressed for any more than the wrong charged in the complaint, and such damages as naturally result from such wrongful act or such as are, in legal contemplation, its proximate result. Other damages are what is known in the law as special damages. *** When it is sought to recover damages of this class, they must be specially averred in the complaint."

Later on in the opinion in the Colbert Case it was said that:

"The law implies some diminished earning capacity from permanent injury."

That statement was too broad, for, evidently, a person may suffer some permanent injury which would not permanently affect his earning capacity, and yet, for such injury, if negligently inflicted, he would be entitled to recover damages in an action properly framed; but, otherwise, it was a correct statement of law. The reason of the matter in question is reflected by the great weight of authority, which is thus stated in 17 C.J. 1015, § 313:

"Where the injury alleged will necessarily render a person less capable of performing his usual business duties in the future, proof of the impairment of his general earning capacity [113 So. 406] may ordinarily be given under the general allegation of the injury, and damages resulting therefrom, such as the inability to attend to his ordinary business, without a special averment that plaintiff will be unable to earn as much in the future as in the past, or without specially averring the nature of his occupation or employment, although a few courts seem to require a greater strictness and definiteness in the allegation."

Decisions from some 15 different jurisdictions are cited in support of the major proposition of the quoted text. Decisions from the courts of 6 states are cited in support of the rule of "a few courts [which] seem to require a greater strictness," among the latter the Colbert Case, 190 Ala. 229, 67 So. 513, and Dunn v. Gunn, 149 Ala. 583, 42 So. 686, decided by this court, and a case from the Kentucky Court of Appeals, we have noticed above the Colbert Case. As for the case of Dunn v. Gunn, we venture to say that the question of recoverable damages briefly mentioned in that case had relation to damages for lost time--a different sort of damages from such as are assessed for impairment of earning capacity, as the opinion in the Colbert Case very clearly points out. Of the Kentucky case, L. & N. v. Sinclair, 171 Ky. 562, 188 S.W. 648, it will suffice, in connection with our quotation from Dowdall v. King, supra, to note the language of the court as follows:

"The permanent impairment of the power to earn money is an incident to a permanent injury, and is necessarily such."

The court is of opinion that the permanent injuries alleged in the present case imply an impairment of earning capacity, and, upon proper proof, allowed a recovery of damages for such impairment.

The more serious difficulty, under...

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34 practice notes
  • Mackintosh Co. v. Wells, 6 Div. 893
    • United States
    • Supreme Court of Alabama
    • June 28, 1928
    ...and decreased earning capacity, under the required pleading and evidence, was given extended consideration in B.E. Co. v. Cleveland, 216 Ala. 455, 113 So. 403, and was adhered to in Gray v. Cooper, 216 Ala. 684, 114 So. 139. All the decisions to the contrary cited by appellant (see Seaboard......
  • Bachelor v. State, 5 Div. 976
    • United States
    • Supreme Court of Alabama
    • May 5, 1927
    ...the closing argument, to which the court sustained objections. Hall v. State (Ala.Sup.) 113 So. 64; Birmingham Electric Co. v. Cleveland, 113 So. 403; Anderson v. State, 209 Ala. 36, 95 So. 171; Cagle v. State, 211 Ala. 346, 100 So. 318; B.R., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 8......
  • Walker County v. Davis, 6 Div. 510.
    • United States
    • Supreme Court of Alabama
    • March 27, 1930
    ...for measurement, and the amount is to be fixed by the jury in their fair and enlightened discretion. Birmingham Elec. Co. v. Cleveland, 216 Ala. 455, 113 So. 403; Gray v. Cooper, 216 Ala. 684, 114 So. 139; Mackintosh Co. v. Wells, supra. The right to recover nominal damages when no substant......
  • Southern Ry. Co. v. Stallings, 6 Div. 63
    • United States
    • Alabama Supreme Court
    • November 6, 1958
    ...Cartledge, 234 Ala. 644, 648, 176 So. 334; Walker County v. Davis, 221 Ala. 195, 199, 128 So. 144; Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 459-461, 113 So. 403. From Walker County v. Davis, supra, [221 Ala. 195, 128 So. 148] is the 'While in later cases the court made a limitati......
  • Request a trial to view additional results
34 cases
  • Mackintosh Co. v. Wells, 6 Div. 893
    • United States
    • Supreme Court of Alabama
    • June 28, 1928
    ...and decreased earning capacity, under the required pleading and evidence, was given extended consideration in B.E. Co. v. Cleveland, 216 Ala. 455, 113 So. 403, and was adhered to in Gray v. Cooper, 216 Ala. 684, 114 So. 139. All the decisions to the contrary cited by appellant (see Seaboard......
  • Bachelor v. State, 5 Div. 976
    • United States
    • Supreme Court of Alabama
    • May 5, 1927
    ...the closing argument, to which the court sustained objections. Hall v. State (Ala.Sup.) 113 So. 64; Birmingham Electric Co. v. Cleveland, 113 So. 403; Anderson v. State, 209 Ala. 36, 95 So. 171; Cagle v. State, 211 Ala. 346, 100 So. 318; B.R., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 8......
  • Walker County v. Davis, 6 Div. 510.
    • United States
    • Supreme Court of Alabama
    • March 27, 1930
    ...for measurement, and the amount is to be fixed by the jury in their fair and enlightened discretion. Birmingham Elec. Co. v. Cleveland, 216 Ala. 455, 113 So. 403; Gray v. Cooper, 216 Ala. 684, 114 So. 139; Mackintosh Co. v. Wells, supra. The right to recover nominal damages when no substant......
  • Southern Ry. Co. v. Stallings, 6 Div. 63
    • United States
    • Supreme Court of Alabama
    • November 6, 1958
    ...Cartledge, 234 Ala. 644, 648, 176 So. 334; Walker County v. Davis, 221 Ala. 195, 199, 128 So. 144; Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 459-461, 113 So. 403. From Walker County v. Davis, supra, [221 Ala. 195, 128 So. 148] is the 'While in later cases the court made a limitati......
  • Request a trial to view additional results

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