Birmingham Electric Co. v. Shephard

• Decision Date: 02 December 1926
• Docket Number: 6 Div. 574
• Citation: 110 So. 604,215 Ala. 316
• Parties: BIRMINGHAM ELECTRIC CO. v. SHEPHARD.
• Court: Alabama Supreme Court

110 So. 604

215 Ala. 316

BIRMINGHAM ELECTRIC CO. v. SHEPHARD.

6 Div. 574

Supreme Court of Alabama

December 2, 1926

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

Action for damages by Ida Ann Shephard against the Birmingham Electric Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Anderson C.J., and Gardner, J., dissenting.

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

J Reese Murray, of Birmingham, for appellee.

SAYRE J.

Plaintiff, appellee, 60 years of age, was a passenger on defendant's electric trolley car. Her destination was Sixty-Eighth street and Sloss avenue. At that point the car line ran along Sixty-Eighth street. The street, outside of that part of it which defendant was under duty to pave and had paved, had been excavated preparatory to paving and was rough and muddy. When the car stopped at Sloss avenue, plaintiff, intending to alight, got as far as the bottom step of the car, when, observing the condition of the street and that its surface was, as she judged, too far below the step for a safe landing, she informed the motorman, at whose end of the car she was, that she could not get off at that point. Her theory of the facts is that thereupon the motorman caused the car to jerk suddenly forward, throwing her off and into the street, whereby she suffered injuries alleged in the complaint. The defense was that, after the car stopped for plaintiff to alight, there was no movement of the car causing her to fall on the street, but that plaintiff, voluntarily and without suggesting her inability to alight at that point, negligently attempted to leave the car, and was hurt in consequence.

Questions argued on this appeal are raised by exceptions to excerpts from the court's oral instruction to the jury and by two special charges given on the request of plaintiff.

The case went to the jury on two counts (1) charging simple negligence in that defendant's employee negligently caused the car "to give a sudden jerk forward," etc.; (2) charging that defendant's employee "wantonly caused the said street car to move forward with a sudden jerk."

The court said to the jury:

"*** It is the duty of a common carrier of passengers, including street railways, to exercise the highest degree of care and provide reasonably safe and convenient places for their passengers to ride and to see that no injury befalls them in and about the duty of their agents *** in carrying passengers on their cars."

And again the court said:

"It is the duty of common carriers of passengers, including street railways, to exercise the highest degree of care in carrying their passengers."

Appellant relies upon L. & N. v. Bowen, 212 Ala. 690, 103 So 872, and B.R.L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, to sustain its charge of reversible error in the quoted parts of the court's oral instruction. The charge, to avoid any possibility of misleading, might well have been amplified by the addition of an explanation of what is meant by "highest degree of care," such as is to be found on page 282 of the opinion in B.R.L. & P. Co. v. Barrett; but it correctly stated, though perhaps not very clearly, the law as far as it went and in the circumstances of this case it cannot be affirmed that it misled the jury. There is therefore no reversible error shown at this point. As for L. & N. v. Bowen, the statement in that case undertook to inform the jury, among other things, that defendant, a carrier, was under duty to employ the highest degree of skill in making plaintiff's journey safe. But skill and care are different things, and the charge given in the last-mentioned case would require of the common carrier of passengers, not only the employment of the highest degree of care, but that its employees should be endowed with that degree of skill which only the most skillful can have, whereas the carrier is required to exercise care that its...