Birmingham Railway & Electric Co. v. Baker

• Decision Date: 18 April 1900
• Parties: BIRMINGHAM RAILWAY & ELECTRIC CO. v. BAKER.
• Court: Alabama Supreme Court

28 So. 87

126 Ala. 135

BIRMINGHAM RAILWAY & ELECTRIC CO. v. BAKER.

Supreme Court of Alabama

April 18, 1900

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

Action by James B. Baker against the Birmingham Railway & Electric Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

This was an action in which plaintiff sought damages for injuries received by him in a collision between a hose wagon in which he was riding and a street care belonging to, and being operated by, the defendant. There were two counts in the complaint. In the first count the plaintiff alleged that he was upon First avenue at its intersection with Twentieth street, in the city of Birmingham, and was upon the hose wagon, going to a fire; that the defendant's car operated by electricity, collided with the hose wagon, and as a proximate consequence thereof, plaintiff was injured. It was further alleged in the complaint that the car collided with the hose wagon, and that plaintiff suffered his injuries as a proximate consequence of the negligence of the defendant, through its employé or employeés, in the management or control of the car. The second count was like the first count, except that, instead of alleging that the car collided with the hose wagon and plaintiff suffered his injuries in consequence of negligence, it was averred that the defendant recklessly and wantonly or intentionally caused the injuries and damage to the plaintiff, in that the defendant, through its servants or agents, recklessly and wantonly or intentionally caused the collision. There were demurrers interposed to the complaint, but it is unnecessary to set them out in detail. The defendant interposed nine pleas. The first plea was the general issue. The fourth fifth, sixth, seventh, eighth, and ninth pleas set up the contributory negligence of the plaintiff. There were demurrers interposed to these pleas, but the record does not show that there was any judgment of the court upon these demurrers. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Among the charges asked by the defendant, to the refusal to give each of which the defendant separately excepted, were the following: "If the jury believe the evidence in this case, they should find for the defendant." "If you believe the evidence you must find for the defendant." There were verdict and judgment for the plaintiff, assessing his damages at $100. 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 record in this case shows no judgment by the court upon either the demurrer to the complaint or the demurrer to the pleas. A statement in the record that "a demurrer to each count in the complaint is by the court overruled, and a demurrer to pleas Nos. 4, 5, 6, 7, and 8 sustained by the court," is nothing more than a recital or memorandum of the clerk. It has been several times recently decided by this court that assignments of error based upon such recitals cannot be considered. Cartlidge v. Slone (Ala.) 26 So. 918; McDonald v. Railway Co. (Ala.) 26 So. 165, where other cases are cited.

There were nine pleas filed to the complaint, and demurrers were interposed to the fourth, fifth, sixth, seventh, and eighth pleas; and, the record failing to show any judgment by the court upon the demurrers, they will be regarded as having been waived; and the judgment entry reciting that "issue being joined," etc., without specifying any particular...