Birmingham Railway & Electric Co. v. Pinkard

• Decision Date: 29 November 1899
• Citation: 26 So. 880,124 Ala. 372
• Parties: BIRMINGHAM RAILWAY & ELECTRIC CO. v. PINKARD.
• Court: Alabama Supreme Court

26 So. 880

124 Ala. 372

BIRMINGHAM RAILWAY & ELECTRIC CO. v. PINKARD.

Supreme Court of Alabama

November 29, 1899

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by Thomas Pinkard against the Birmingham Railway & Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action brought by the appellee, Thomas Pinkard against the Birmingham Railway & Electric Company, to recover damages resulting from the alleged negligence of the defendant or its employés, whereby the plaintiff's horse was killed and his buggy and harness injured. The facts of the case necessary to an understanding of the decision are stated in the opinion. Upon the introduction of all the evidence the defendant requested the court to give to the jury the following written charges, to the court's refusal to give each of which the defendant separately excepted: "(1) If the jury believe the evidence in this case, they must find a verdict for the defendant. (2) Unless the jury believe from the evidence that the defendant wantonly, willfully, or intentionally ran into plaintiff's horse and buggy, they must find a verdict for the defendant. (3) If the jury believe the evidence in this case, they must find a verdict for the defendant under the first count of the complaint. (4) If the jury believe the evidence in this case, they must find a verdict for the defendant under the second count of the complaint. (5) I charge you, gentlemen of the jury, that as a matter of law under the evidence in this case, the driver of plaintiff's horse and buggy was guilty of contributory negligence. (6) You cannot find that the motorman was guilty of willful or intentional misconduct unless you believe from the evidence that the motorman actually intended that the car should run into and collide with the buggy. (7) It is the duty of the driver, if you believe from the evidence that he was attempting to drive across the track, to stop, look, and listen before he drove across said track; and if you further believe from the evidence that he did not so stop, look, and listen, then he was guilty of contributory negligence. (8) You cannot find that the motorman was guilty of wanton misconduct unless you believe from the evidence that his conduct evinces such an entire want of care, and disregard of the safety of others, as that it shows a willingness on his part to inflict the injury. (9) You cannot find that the motorman was guilty of wanton misconduct unless you believe from the evidence that he had no care at all for the safety of the occupants of the buggy. (10) You cannot find that the motorman was guilty of wanton misconduct unless you believe from the evidence that his conduct evinces such an entire want of care, and disregard of the safety of the occupants of the buggy, as that it is the moral equivalent of an intention on the part of the motorman to inflict the injury. (11) If you believe the evidence, you cannot find that the motorman was guilty of wanton, willful, or intentional misconduct." There were verdict and judgment for the plaintiff, assessing his damages at $80. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Walker Porter & Walker, for appellant.

Bowman & Harsh, for appellee.

DOWDELL J.

The damages claimed by the plaintiff (appellee here) resulted from a collision between plaintiff's horse and buggy, at the time driven by one Chapman, and defendant's street car, operated by means of electricity, on defendant's track along First avenue, a public highway extending from the city of Birmingham to Avondale, a suburb of said city. The complaint contained two counts,-the first declaring for simple negligence, and the second count for wanton or intentional wrong and injury. There was evidence on the part of the plaintiff which tended to show that the plaintiff's horse and buggy at the time of...