Birmingham Ry. & Elec. Co. v. Butler

• Decision Date: 25 November 1902
• Citation: 135 Ala. 388,33 So. 33
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY. & ELECTRIC CO. v. BUTLER.

33 So. 33

135 Ala. 388

BIRMINGHAM RY. & ELECTRIC CO. v. BUTLER.

Supreme Court of Alabama

November 25, 1902

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

Action by Katie Butler, by her next friend, against the Birmingham Railway & Electric Company. Judgment for plaintiff. Defendant appeals. Reversed.

This was an action in which the plaintiff sought to recover $10,000 damages for personal injuries alleged to have been caused the plaintiff by reason of the negligence of the defendant. The complaint contained two counts. The first count was in words and figures as follows: "Plaintiff claims of defendant ten thousand dollars as damages, for that heretofore, to wit, on the 12th day of June, 1899, defendant was a common carrier of passengers by means of cars operated by electricity over and along a railway running from East Lake to and by Avondale to Birmingham, in Jefferson county Alabama; that on said day plaintiff was a passenger on one of said cars, and was being carried by defendant, as such passenger, along said railway, in said car, when defendant on said day, negligently caused or allowed another of said cars to collide with said car upon which plaintiff was as aforesaid, or to appear to be in imminent danger of collision with said car, and to threaten the life, limb, or safety of the passengers on said car upon which plaintiff was as aforesaid; and, as a proximate consequence of said negligence, plaintiff was caused to jump, fall, or be thrown from said car, upon which she was being carried as a passenger as aforesaid, and to be bruised, cut, shocked, and otherwise personally injured, and her health and physical strength to be greatly impaired, and to suffer great mental and physical pain, and to be confined to her bed a long time to wit, for four weeks, and to be rendered unable to work and earn money, and her health and strength to be permanently injured." The second count sought to recover for that the defendant negligently or wantonly or intentionally caused said car to collide, or recklessly or wantonly or intentionally caused said car or train to be in imminent danger of collision. The averment of negligence in said count was as follows: "Defendant's servant or agent in charge or control of one of said cars recklessly and wantonly or intentionally caused said car to collide with the car upon which plaintiff was being carried as a passenger as aforesaid, or recklessly and wantonly or intentionally caused said car, of which he, said servant, was in charge or control as aforesaid, to be or appear to be in imminent danger of collision with said car upon which plaintiff was as aforesaid, with knowledge or notice that passengers were upon said car upon which plaintiff was as aforesaid, and that said collision, or real or apparent imminency of collision, would be highly dangerous to the life, limb, or safety of said passengers." The defendant demurred to the first count of the complaint upon the following grounds: (1) That the count is too vague, indefinite, and uncertain in its averments as to what caused plaintiff to leave the car; (2) that the averment that plaintiff was caused to jump from the car is not equivalent to an averment as a proximate consequence of the facts alleged in the count; (3) that the averment that plaintiff was caused to jump does not show that she jumped because there was immediate danger of a collision such as threatened the life, liberty, or safety of one in the exercise of reasonable diligence, under the circumstances and facts stated in the complaint. This demurrer was overruled and to this ruling the defendant duly excepted. On the trial of the case the testimony introduced on behalf of the plaintiff tended to show that on June 12, 1899, the plaintiff was a passenger on one of the cars operated by the defendant going from East Lake, a suburb of the city of Birmingham, to Birmingham; that on the night of that day there was an entertainment of some kind at East Lake, and the plaintiff and others were returning therefrom; that the train upon which the plaintiff was at the time of the accident consisted of a motor car and a trailer, and both of said cars were somewhat crowded with passengers; that, following the train on which the plaintiff was, there was another train, made up of like cars, also going from East Lake to the city of Birmingham; that when the train on which the plaintiff was riding arrived at Avondale, a station on the defendant's road between East Lake and Birmingham, the train stopped, and was just starting from said station when the train following it came up and collided with the train on which the plaintiff was riding;...