Birmingham Railway & Elec. Co. v. James

• Decision Date: 21 April 1899
• Parties: BIRMINGHAM RAILWAY & ELECTRIC CO. v. JAMES.
• Court: Alabama Supreme Court

25 So. 847

121 Ala. 120

BIRMINGHAM RAILWAY & ELECTRIC CO. v. JAMES.

Supreme Court of Alabama

April 21, 1899

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Mollie James, as executrix of Lewis H. James, deceased against the Birmingham Railway & Electric Company. From a judgment entered on a verdict for plaintiff, defendant appeals. Affirmed.

Appellee the plaintiff below, sued to recover damages received by the intestate, her husband, resulting in his death, alleged to have been received while a passenger on an electric car operated by appellant, defendant below, through the negligence of the persons in charge of the car. There were three counts in the complaint, the first charging simple negligence, and the other two negligence of a wanton and intentional character on the part of defendant. The case was tried, under the rulings of the court, alone on the first count. After its introductory part, that count charges, that on the day the accident occurred, "plaintiff's intestate, Lewis H. James, was upon one of said two cars being carried by defendant, as its passenger, to a point on said railway, to wit Thirty-Ninth street, and while so upon said car, and upon the steps or platform thereof, engaged in and about alighting from said car, at or near said decedent's destination as aforesaid, defendant so negligently conducted itself in or about carrying plaintiff as its passenger as aforesaid, that said cars were given an impetus forward or pulled or jerked suddenly, and as a proximate consequence thereof said intestate was knocked thrown or caused to fall from the platform or steps of said car, and was run over by one or both of said cars, and so injured that he died."

The defendant pleaded not guilty, and in substance, that the plaintiff's intestate contributed proximately to his injury and death by negligently riding on the platform of the car while the same was in motion and while he was intoxicated; for negligently being or riding on the platform or steps of the car while in motion; that he was riding on the back platform of the car while it was in motion, without holding, or without taking due precaution to prevent himself from falling from said car; that his injury and death arose from the negligent manner in which he alighted or attempted to alight from defendant's car; and that his injury and death arose from the negligent manner in which he was riding on the car.

C. T Farrer, a locomotive engineer, testified for plaintiff in substance, that he was a passenger on the same car with James, which was the leading and closed car, followed by an open car; that witness sat on the platform with his back to the wall and James came out and was talking to him and one or two others on the platform, when the conductor came out; that James said to the conductor, "Stop at Thirty-Ninth street; I want to get off there," and the conductor told him "All right;" that he remained on the car till James got hurt, which was "exactly a car length and a half, beyond Thirty-Ninth street," a car length being 30 feet; that the car, after passing the station, did not stop entirely still, but came nearly to a stop, and gave a sudden move off; that James was on the bottom step, with his right hand on the supporting bar, a bundle under his left arm and one foot on the step, and all at once the electricity was turned on the car, which jerked forward and threw him from his balance and around off towards the car; that he wheeled and tried to recover, but fell to the ground; that his left foot was ready, it seemed, for getting off the car when it stopped, and his foot never touched the ground until his body was gone; that he was not drunk but sober as any man; may have had a drink or more than one, but he could not tell that he was under the influence of an intoxicant.

P. D. Self, for plaintiff, testified, that he was standing at the station waiting for a car to go to town, and the car that killed James came up and did not stop at the station; it rolled on by the station 10 or 15 feet and then slowed almost to a standstill; it was hard to tell whether it was going or standing still; that he was within 3 or 4 feet of James on the left side of the car going east when he was in the act of stepping off the car; that his foot struck the ground, the other being on the car, and as it did, the car gave a quick jerk, and jerked the man under the rear car and it ran over him; that the car went about 50 feet before it stopped and came back; that when James was about to step off, the car started all at once and jerked him off; it made a quick jump and twisted him right under and between the two cars; that at the time James fell the whole train had passed the shed at the station, and James had his hand on the hand hold.

Several witnesses testified for the defendant that the train stopped at the Thirty-Ninth street station and started again without a jerk, and that James did not get off when the train stopped. One of the witnesses swore he made no effort to get off, and when the train started from the station, he was standing on the platform, and when it had gone two or three car lengths, running six or eight miles an hour, he fell from the platform of the car. None of them saw him fall, except one Harris, whose evidence was admitted on showing, and by that showing it appears, that after the train started, and had gone two or three car lengths, James, still standing on the platform of the car, fell to the ground when it was running six or eight miles an hour, and in the fall was injured.

The conductor swore, that deceased was drunk, but had not seen him drink any; that the first he knew any one was hurt, was when after the train left the station, and was about three car lengths away, he heard some one say, "Stop the car, you have hurt a man," and he caused the car to be stopped as quickly as possible, and went back and picked James up. He also swore that deceased was passing out of the car onto the platform and back again several times, but this part of his evidence was in conflict with that of other witnesses. One of defendant's witnesses, Dickinson, testified that James went out to the platform, that after James walked out to the platform, witness shut the door and it stayed closed till the deceased got hurt.

The other facts of the case adduced on the trial, which are necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

Plaintiff's counsel in the course of his argument to the jury, in his opening speech in this cause, said: "Not satisfied with taking the life of this man, this witness attempts to rob him of his good name." The defendant objected to the said statement made in argument by plaintiff's counsel, and defendant requested the court to instruct the jury that such argument was improper, and that the jury should pay no attention thereto. The court refused to so instruct the jury, and the defendant excepted.

In addition to the portions of the court's oral charge, which were excepted to and which are copied in the opinion, the defendant also separately excepted to the following portions of the court's oral charge which are numbered 4 and 5 to correspond with the assignments of error, based upon the giving by the court of such instructions: (4) "Well, if the car passed Thirty-Ninth street crossing without stopping for Mr. James to alight, and then if it slowed up to such an extent as would imply, on the part of those persons who had charge of the car, that that was an invitation for Mr. James to alight at that point, and he endeavored to do so, why then it was just as much their duty not to jerk the car suddenly, or give it a forward impetus so suddenly as to imperil his life or his safety, as if it had been at the crossing itself. If they stopped the car, or if they slowed it up beyond Thirty-Ninth street crossing to such an extent, and if that was an invitation to Mr. James to alight at that point, why then, I say they were under just as much duty to protect him against injury as if the stop had been made right at Thirty-Ninth street crossing; and if they gave the car a sudden impetus or jerk at that point, that would constitute on their part a breach of duty to Mr. James." (5) "Now, then, as to whether or not Mr. James was guilty of contributory negligence in attempting to alight from the car while in motion at that point, would depend upon circumstances. That would be a question for you to determine. It would be a question for you to say whether or not a man of ordinary prudence and care would have undertaken to alight from a train or an electric car that was moving at the speed that that car was moving at that time and at that place. Would a man of ordinary prudence and care have alighted from it, or would he have undertaken to have alighted from it under those circumstances? If so, then an attempt on his part to do so would not constitute contributory negligence. If a man of ordinary prudence and care would not have undertaken to do it under those circumstances, then his attempting to do it would be contributory negligence, and would defeat his right to recover in this action."

At the request of the defendant, the court, by and with the consent of the plaintiff, instructed the jury as follows: "I charge you that the undisputed evidence shows that Lewis H James was guilty of...