Appeal
from circuit court, Jefferson county; A. A. Coleman, Judge.
Action
by James B. Baker against the Birmingham Railway & Electric
Company. From a judgment in favor of the plaintiff, defendant
appeals. Affirmed.
This
action was brought by the appellee against the appellant, to
recover damages for personal injuries sustained by the
plaintiff, by reason of a collision between an electric car
owned and operated by the defendant and a hose cart of the
fire department, upon which cart plaintiff was riding at the
time of the accident.
The
complaint contained two counts, which were in words and
figures as follows:
"Plaintiff
claims of defendant ten thousand dollars as damages for
that heretofore, to wit, on January 10, 1898, plaintiff was
upon one of the public streets of the city of Birmingham
within the corporate limits of said city, to wit, upon
First avenue, and at its intersection of Twentieth street
and was upon a vehicle being used by the fire department of
said city, to wit, a hose wagon, plaintiff being at said
time engaged in or about the business of said fire
department, to wit, attending an alarm of fire; that at
said time and place a car being operated by defendant over
and along said Twentieth street, and across said First
avenue, by means of electricity, collided with said vehicle
and, as a proximate consequence thereof, plaintiff's
shoulder blade was broken, his shoulder dislocated, his
knee injured and various parts of his body were cut
bruised and otherwise injured, and plaintiff suffered great
mental and physical pain, and was crippled and disfigured
and was rendered unable for a long time to work and earn
money, and was rendered permanently less able to work and
earn money, and plaintiff was rendered unfit to pursue his
accustomed avocation, and was put to great inconvenience
and trouble and expense for medicine, medical attention,
care and nursing in his efforts to heal and cure his said
wounds and injuries. Plaintiff alleges that said car
collided with said vehicle, and plaintiff suffered said
wounds and injuries, as a proximate consequence of the
negligence of defendant, through its employé or employés,
in the management or control of said car."
"Second
Count. Plaintiff refers to, and adopts as a part of this
count, all the words and figures of the first count from the
beginning thereof to and including the words, 'heal and
cure his said wounds and injuries,' where they first
occur together in said count, and plaintiff further avers
that defendant recklessly and wantonly or intentionally
caused said injuries and damage to plaintiff, in that
defendant through its servants or agents recklessly and
wantonly or intentionally caused said collision. All to
plaintiff's damage, ten thousand dollars, wherefore he
sues."
To the
first count the defendant demurred upon the following
grounds: "(1) For that the allegations of negligence
therein are vague, indefinite and uncertain. (2) For that it
is not alleged in what manner the defendant was negligent.
(3) For that it is not alleged that the injuries were
inflicted by the negligence of the defendant."
To the
second count the defendant demurred upon the following
grounds: "For that the same fails to show any facts
constituting recklessness, wantonness, or intentional
misconduct. (2) For that the same fails to allege that the
injuries to plaintiff were recklessly, wantonly or
intentionally inflicted." These demurrers were
overruled. Thereupon the defendant filed several pleas of the
general issue, and the following special pleas:
"(4)
The defendant for further answer to the said complaint says
that the plaintiff at the time he received his alleged
injuries was riding in a vehicle that was being driven by
another person, and the defendant says that plaintiff's
injuries were caused by the negligence of the driver of
such vehicle.
"(5)
The defendant for further answer to the said complaint says
that the plaintiff at the time he received his alleged
injuries was riding in a vehicle that was being driven by
another person, and the defendant says that the driver of
such vehicle was guilty of negligence in this, that he
negligently drove said vehicle into and against the
defendant's car, and such negligence of the driver of
said vehicle approximately contributed to and helped to
cause the injuries alleged to have been received by the
plaintiff.
"(6)
The defendant for further answer to the first count of the
complaint says that the plaintiff at the time he received
his alleged injuries was riding in a vehicle that was being
driven by another person, who at the time was engaged in a
common enterprise, and the defendant says that
plaintiff's alleged injuries were caused by the driver
of said vehicle.
"(7)
The defendant for further answer to the first count of the
complaint says that the plaintiff at the time he received
his alleged injuries was riding in a vehicle that was being
driven by another person, and the defendant says that the
driver of such vehicle was guilty of negligence, in this,
that he negligently drove said vehicle in and against the
defendant's car, and such negligence of the driver of
said vehicle proximately contributed to and helped to cause
the injuries alleged to have been received by the
plaintiff.
"(8)
The defendant for further answer to the first count of the
complaint says that the plaintiff was himself guilty of
negligence which proximately contributed to his alleged
injuries, and such contributory negligence consisted in the
negligent manner in which the vehicle the plaintiff was at
the time riding was driven into and against the
defendant's car.
"(9)
The defendant for further answer to the first count of the
complaint says that the plaintiff was himself guilty of
negligence which proximately contributed to his alleged
injuries, and such contributory negligence consisted in his
negligently remaining on the vehicle, in or on which he was
at the time riding.
"(10)
For further answer to the first count of the complaint, the
defendant says that the plaintiff was himself guilty of
negligence which proximately contributed to his alleged
injuries, and such contributory negligence consisted in
this, that he was assistant driver on said hose cart, and
it was his duty while riding upon said hose cart or wagon
to look out for and discover obstructions in the way of the
progress of said wagon, and to call the driver's
attention thereto; and the defendant avers that the
plaintiff negligently failed to look out for the
defendant's said car, which was an obstruction in the
way of the progress of said wagon, and negligently failed
to call the attention of the driver of said wagon to such
obstruction.
"(11)
For a further answer to the first count of the complaint,
the defendant avers that the plaintiff was the assistant
driver at the time on said hose cart, or wagon, and, as
such, it was his duty to ride upon the wagon and look out
for obstructions in the way of its progress, and to call
the driver's attention to such obstructions. And the
defendant further avers that the driver of said wagon and
plaintiff were at the time engaged in the joint enterprise
of going to a fire in response to a fire call, the one as
driver, as aforesaid, and the other as assistant driver,
and with duties as aforesaid; and the defendant avers that
the driver of said wagon was guilty of negligence in this,
that he negligently drove said wagon into and against the
defendant's car, and such negligence of the driver of
said wagon proximately contributed to the injuries alleged
to have been received by the plaintiff."
These
demurrers were sustained, and the cause was tried upon issue
joined on the other pleas.
The
facts necessary to an understanding of the decision 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) I charge you that you cannot
award punitive damages in this case. (2) If you believe from
the evidence that just before and at the time of the
collision between the wagon and the car, the wagon was being
drawn by two horses that were running as fast as they could
run, that at such time the plaintiff was standing on his feet
on the wagon, putting on his coat, that it is negligence for
one, while riding upon a wagon being drawn at such speed, to
stand on his feet on such a rapidly running wagon and put on
his coat, that such negligence of plaintiff proximately
contributed to his injuries or to his falling off of the
wagon, your verdict must be for the defendant. (3) I charge
you, gentlemen of the jury, that it is negligence for one
while riding upon a wagon, running twenty-five miles an hour,
to stand upon his feet, and while so standing be in the act
of putting on his coat. (4) If you believe the evidence you
cannot find that the motorman, Curtis, intentionally injured
the plaintiff. (5) If you believe the evidence you cannot
find that the motorman, Curtis, wantonly injured the
plaintiff. (6) If you believe the evidence you must find for
the defendant. (7) If you believe the evidence you cannot
find for the plaintiff under the first count of the
complaint. (8) If you believe the evidence you cannot find
for the plaintiff under the second count of the complaint.
(9) If you believe from the evidence that just...
