Birmingham Ry. & Elec. Co. v. Clay

• Decision Date: 10 January 1896
• Citation: 108 Ala. 233,19 So. 309
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RAILWAY & ELECTRIC CO. v. CLAY.

19 So. 309

108 Ala. 233

BIRMINGHAM RAILWAY & ELECTRIC CO. v. CLAY.

Supreme Court of Alabama

January 10, 1896

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

Action by Annie Clay, administratrix, against the Birmingham Railway & Electric Company to recover damages for negligently killing plaintiff's intestate. There was a verdict and judgment for plaintiff, and defendant appeals. Reversed.

On the 30th day of November, 1893, Annie Clay, as administratrix of the estate of Jerry Clay, deceased, brought this suit against the Birmingham Railway & Electric Company, a corporation. The first count of the complaint was withdrawn by appellee before the trial, and the case was tried on the second and third counts alone. The averments of the second count, which was filed on November 15, 1894, are that the appellant, on the 4th day of March, 1893, was operating a street railroad known as the East Lake Railroad, together with the cars and dummy or locomotive engine, and was a common carrier of passengers for hire to points in and beyond the city of Birmingham to East Lake, a village in Jefferson county about six miles from said city. Said railroad was in and along First avenue in said city; and on the 4th day of March, 1893 said Jerry Clay was killed by the carelessness and negligence of appellant, in that, while said Jerry Clay was in the act of boarding one of the cars of appellant on said road as a passenger at a time when the train had stopped to receive passengers on said First avenue in said city, appellant, its agents or servants, negligently and carelessly started said train with a sudden and unusual jerk, and in consequence thereof said Jerry Clay was hurled to the ground and run over by said train and killed, wherefore she sues for $15,000 as damages. The third count, which was filed on the 25th day of March, 1895, avers the same facts in regard to the operation of said East Lake Railroad as are averred in the second count, and avers, in addition, that while said train had, on the 4th day of March, 1893, stopped on First avenue in said city for the purpose of receiving and putting off passengers said Jerry Clay and other passengers, seeking to board said train as passengers, got upon the platform of one of the cars of said train as it came westwardly into the city, he intending to go to Woodlawn, one of the stations on said railroad east of Birmingham, as the said train went eastward that while he was on said platform and before he had time and opportunity to get inside said car, the same was put quickly in motion, and he was thereby thrown from his balance and caused to fall off said platform and under the wheels of the car he was seeking to enter, and he was thereby run over and killed. That his death was caused by the negligence of appellant in not allowing the train to remain stationary long enough for him to get safely on the same; and in starting the train too suddenly so as to throw him off said platform; and in failing to discover his peril while on the platform from said car being put in motion; in putting said train in motion while he was in a place of danger which might have been discovered and averted by proper care and watchfulness on appellant's part; and in failing to keep a proper lookout to see that he had reached a place of safety on the train before it was put in motion. Wherefore she sues for $15,000 as damages.

Appellant, before the trial, filed the five following pleas: (1) The general issue. (2) That the plaintiff's intestate was guilty of negligence which proximately contributed to his alleged injury and death. (3) That the plaintiff's intestate was guilty of negligence in and about getting or attempting to get on the train, which negligence proximately contributed to his alleged injury and death. (4) That the plaintiff's intestate was guilty of negligence in this, that he attempted to board one of the defendant's trains or cars while in motion, which said negligence proximately contributed to his alleged injury and death. (5) That the plaintiff's intestate was guilty of negligence in this, that he undertook to get aboard the defendant's train with a basket or other things in his hands. Appellee filed the following demurrers to appellant's plea No. 5: (1) The facts therein stated show no negligence as a matter of law. (2) The facts therein stated constitute no defense and afford no ground for a defense. The court sustained appellee's said demurrers to appellant's plea No. 5, and the trial proceeded with the said other four pleas of appellant.

The facts of the case, as shown by the evidence, and the rulings on the evidence, which are reviewed on the present appeal, are sufficiently 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, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence in this case they must find a verdict for the defendant." (2) "If the jury believe the evidence in this case, they must find a verdict for the defendant under the second count of the complaint." (3) "If the jury believe the evidence in this case, they must find a verdict for the defendant under the third count of the complaint." (4) "It is negligence for a person to attempt to board a moving train, and if he be injured by such attempt, he cannot recover." The jury returned a verdict for the plaintiff, assessing her damages in the sum of $500. Thereupon the defendant moved the court for a new trial, upon the following grounds: (1) That the court erred in giving charges requested by the plaintiff in writing. (2) In refusing to give charges requested by the defendant in writing. (3) In overruling defendant's objection to evidence. (4) The verdict of the jury is contrary to the law as given by the court. (5) The verdict of the jury is contrary to the evidence. This motion was overruled by the court, and to this ruling the defendant duly excepted. There was judgment for the plaintiff in accordance with the verdict rendered. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Walker, Porter & Walker, for appellant.

Lea & McMaster, for appellee.

HARALSON J.

1. What the height and size of plaintiff's intestate, who was killed by the train, had to do with the issues of the case it is difficult to understand. He was shown to be of medium height and size. The defendant objected to this proof when offered, because it was irrelevant, immaterial and illegal, but it was let in. It also moved to exclude it, on the same grounds, but the motion was overruled. The company...