Birmingham Ry. & Elec. Co. v. Butler

CourtSupreme Court of Alabama
Writing for the CourtDOWDELL, J.
Citation135 Ala. 388,33 So. 33
Decision Date25 November 1902
PartiesBIRMINGHAM 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...

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16 practice notes
  • J. H. Burton & Sons Co. v. May, 1 Div. 312
    • United States
    • Supreme Court of Alabama
    • January 22, 1925
    ...v. Whittington, 202 Ala. 406, 410, 80 So. 499; Ala. City, etc., Co. v. Bessiere, 197 Ala. 9, 72 So. 325; Birmingham, etc., Co. v. Butler, 135 Ala. 388, 33 So. 33; Morrissett, Exec., v. Wood, 123 Ala. 384, 26 So. 307, 82 Am.St.Rep. 127. At the time the instant hypothetical question was sough......
  • Miller v. Whittington, 4 Div. 738
    • United States
    • Supreme Court of Alabama
    • May 30, 1918
    ...the trial court. Such a question is held objectionable if it contains elements of fact not shown by the evidence. B.R. & E. Co. v. Butler, 135 Ala. 388, 395, 33 So. 33; Morrissett v. Wood, 123 Ala. 385, 26 So. 307, 82 Am.St.Rep. 127; Parrish's Case, 139 Ala. 16, 36 So. 1012; Long Distance C......
  • Birmingham Electric Co. v. Ryder, 6 Div. 22.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...Hamilton v. Cranford Mercantile Co., 201 Ala. 403, 406, 78 So. 401, and authorities; Birmingham Railway & Electric Co. v. Butler, 135 Ala. 388, 395, 33 So. 33; Parrish v. State, 139 Ala. 16, 36 So. 1012; Long Distance Telephone & Telegraph Co. v. Schmidt, 157 Ala. 391, 47 So. 731; Birmingha......
  • Brown v. Mobile Electric Co., 1 Div. 214.
    • United States
    • Supreme Court of Alabama
    • December 22, 1921
    ...of the trial court, and the court will not be put in error unless that discretion is abused. Birmingham Ry. & Elec. Co. v. Butler, 135 Ala. 388, 33 So. 33; Long Dist. T. & T. Co. v. Schmidt, 157 Ala. 391, 47 So. 731; Grasselli Chem. Co. v. Davis, 166 Ala. 471, 52 So. 35; 11 R. C. L. p. 579,......
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16 cases
  • J. H. Burton & Sons Co. v. May, 1 Div. 312
    • United States
    • Supreme Court of Alabama
    • January 22, 1925
    ...v. Whittington, 202 Ala. 406, 410, 80 So. 499; Ala. City, etc., Co. v. Bessiere, 197 Ala. 9, 72 So. 325; Birmingham, etc., Co. v. Butler, 135 Ala. 388, 33 So. 33; Morrissett, Exec., v. Wood, 123 Ala. 384, 26 So. 307, 82 Am.St.Rep. 127. At the time the instant hypothetical question was sough......
  • Miller v. Whittington, 4 Div. 738
    • United States
    • Supreme Court of Alabama
    • May 30, 1918
    ...the trial court. Such a question is held objectionable if it contains elements of fact not shown by the evidence. B.R. & E. Co. v. Butler, 135 Ala. 388, 395, 33 So. 33; Morrissett v. Wood, 123 Ala. 385, 26 So. 307, 82 Am.St.Rep. 127; Parrish's Case, 139 Ala. 16, 36 So. 1012; Long Distance C......
  • Birmingham Electric Co. v. Ryder, 6 Div. 22.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...Hamilton v. Cranford Mercantile Co., 201 Ala. 403, 406, 78 So. 401, and authorities; Birmingham Railway & Electric Co. v. Butler, 135 Ala. 388, 395, 33 So. 33; Parrish v. State, 139 Ala. 16, 36 So. 1012; Long Distance Telephone & Telegraph Co. v. Schmidt, 157 Ala. 391, 47 So. 731; Birmingha......
  • Brown v. Mobile Electric Co., 1 Div. 214.
    • United States
    • Supreme Court of Alabama
    • December 22, 1921
    ...of the trial court, and the court will not be put in error unless that discretion is abused. Birmingham Ry. & Elec. Co. v. Butler, 135 Ala. 388, 33 So. 33; Long Dist. T. & T. Co. v. Schmidt, 157 Ala. 391, 47 So. 731; Grasselli Chem. Co. v. Davis, 166 Ala. 471, 52 So. 35; 11 R. C. L. p. 579,......
  • Request a trial to view additional results

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