Birmingham Ry. & Elec. Co. v. Brannon

• Citation: 31 So. 523,132 Ala. 431
• Parties: BIRMINGHAM RY. & ELECTRIC CO. v. BRANNON.
• Decision Date: 13 February 1902
• Court: Supreme Court of Alabama

31 So. 523

132 Ala. 431

BIRMINGHAM RY. & ELECTRIC CO. v. BRANNON.

Supreme Court of Alabama

February 13, 1902

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

Action by Nettie P. Brannon, as administratrix, against the Birmingham Railway & Electric Company. From a judgment for plaintiff, defendant appeals. Reversed.

Walker Tillman, Campbell & Porter, for appellant.

Bowman & Harsh and John T. Shugart, for appellee.

McCLELLAN C.J.

Action for damages resulting from personal injuries inflicted by the railway company upon plaintiff's intestate, causing his death. The first count of the complaint ascribes the injury and consequent death of intestate to the negligence of defendant's servants in charge of an electric street car in causing or allowing "said car to give a sudden lurch or other sudden motion" while plaintiff's intestate was "engaged in or about boarding said car." We have attentively read and carefully considered the evidence adduced on the trial, and the brief and argument of counsel for appellee, wherein it is attempted to point out evidence in support of the averments of this count; but we have been unable to find in the transcript any evidence which, in our opinion, tends to show, or from which the jury had a right to infer, that there was any sudden lurch or other sudden motion of the car while Brannon, the intestate, was engaged in and about boarding it. And we therefore conclude that the trial court erred in its refusal to give the fifth charge requested by the defendant,--that, "if the jury believe the evidence, they cannot find for the plaintiff under the first count of the complaint."

In the second and third counts it is averred that Brannon, in attempting to board the train, fell or was thrown between two cars, and that while he was so between said cars the defendant, through its servant or agent, so negligently conducted itself (second count) in or about the management etc., of said cars, that the car or cars, or a part thereof ran upon or against said intestate, and so injured him that he died, or (third count) recklessly and wantonly or intentionally caused the death of the intestate by recklessly and wantonly causing said car or cars, or a part thereof, to run upon or against said intestate, and so injure him that he died. There was no evidence that Brannon was between the cars when he was run upon or against, but all the evidence concurs that he was...