Birmingham Railway & Electric Co. v. City Stable Co.

• Decision Date: 05 November 1898
• Citation: 119 Ala. 615,24 So. 558
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RAILWAY & ELECTRIC CO. v. CITY STABLE CO.

24 So. 558

119 Ala. 615

BIRMINGHAM RAILWAY & ELECTRIC CO. v. CITY STABLE CO.

Supreme Court of Alabama

November 5, 1898

Appeal from city court of Birmingham.

Action by the City Stable Company against the Birmingham Railway &amp Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to recover damages for injuries inflicted upon the plaintiff's horse, buggy, and harness by a car owned and operated by the defendant. The complaint, as originally filed, contained four counts; the first two charging simple negligence, and the last two charging willful and wanton injury. It was averred in each of the counts that at the time of the accident the car which caused the injury was being operated and in charge of the defendant's agent, the motorman, but in no count was the name of the motorman given. The defendant demurred to each count of the complaint upon the ground that the name of the defendant's agent, the motorman, who was in charge of the car at the time of the alleged injury, was not given, nor was it averred that the name was unknown to the plaintiff, or could not have been ascertained by the exercise of due diligence. This demurrer was overruled, and to this ruling the defendant duly excepted. The defendant pleaded the general issue, and to the first and second counts of the complaint filed the following special pleas: "(2) That the plaintiff, or the driver of said horse and buggy, was guilty of negligence in negligently driving the same upon the track of defendant immediately in front of defendant's car, which negligence proximately contributed to plaintiff's said injury or damage. (3) That plaintiff, or its driver, was guilty of negligence in negligently allowing said horse and buggy to remain upon said track on a curve which negligence proximately contributed to plaintiff's said injury or damage. (4) That plaintiff, or its driver, was guilty of negligence in negligently allowing said horse and buggy to stand upon the said track at a point where they could not be seen by defendant's motorman on said car in time for said car to have been stopped before striking said horse and buggy." The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, among other things, in its oral charge instructed the jury as follows: "(a) The duty of a motorman on an electric car varies, to some extent, according to the locality in which he is running. He may be permitted to run at a rate of speed in open country, where there are no crossings, which would not be permitted where he would be likely to encounter people and vehicles upon the track. (b) It would be proper for him to run the car at one speed in one part of the town, and not to run at such rate of speed at another part of the town, where it was more densely populated. (c) In determining whether he was guilty of negligence in this case, gentlemen of the jury, you will consider the locality where he was running; whether or not there was danger of his striking a vehicle or person upon the track at any crossing, and how fast he was running; how far his light would enable him to observe dangers in front of him; within what distance he could stop the car,-and from all the circumstances which the evidence discloses to you surrounding this matter, you will determine whether or not he was guilty of negligence in running the car. (d) It is the duty of the motorman, when he is running where he may come into collision with some person or vehicle at a crossing, at some place where the person or vehicle has a right to be, to keep his car under such control as that he may stop it in time to avoid injury, if he had, with proper diligence discovered the danger. While he may run with greater or less speed according to the locality in which he is running, it is his duty to at least retain control over his car; and that control must be such that he may, in case he encounters danger and discovers it, by doing those things which will control his car, so regulate his speed that he will come to a full stop before he does the injury to the person or vehicle that may be in front of him, or give that person or vehicle an opportunity to get out of the way. He is not bound to anticipate that anybody will do anything in getting upon the track which he ought not to do, but he is bound to know that other people have a right upon the track, besides himself and in running the trains he must so run them that he may discover danger, if he can discover it by the exercise of proper diligence, so as to stop the car, and avert the injury which might happen to a person in his way upon the track. If the night is dark, and he cannot see further ahead than his light, of course it is his duty to take that fact into consideration in determining the speed of his car. If he cannot see but a little way ahead, he must run more slowly than if he could see a long way ahead. (e) If he fails in any such duty, he is guilty of negligence; and if injury results to any persons upon the track, or to property which is where it has a right to be, then the company for whom the motorman is acting is liable for the result." To the giving of each of these parts of the court's oral charge the defendant separately excepted. The defendant thereupon requested the court to give to the jury the following written charges, and to the court's refusal to give each of said charges the defendant separately excepted. The first and second charges were the general affirmative charge. The others were as follows: "(3) If you believe from the evidence that Pritchard was familiar with the crossing at Avenue F and Thirty-Third street, and that he (Pritchard) knew that there was a place to cross which was safer than the crossing at Avenue F and Thirty-Third street, and that he (Pritchard) failed to make use of such safe and more convenient crossing, then I charge you that Pritchard was guilty of negligence in crossing at Avenue F and Thirty-Third street, and your verdict must be for the defendant, if you further believe that such crossing at Avenue F and Thirty-Third street contributed proximately to plaintiff's injury and damages. (4) If the jury believe from the evidence that there were two ways by which the driver could have driven across Avenue F at or near the place where he desired to cross the same, and they further believe from the evidence that one of said ways was a safe way to cross, and the other was a dangerous way, and they further believe from the evidence that the driver chose the dangerous way, then their verdict...