Birmingham Ry. & Electric Co. v. Ellard

• Decision Date: 13 January 1903
• Citation: 33 So. 276,135 Ala. 433
• Parties: BIRMINGHAM RY. & ELECTRIC CO. v. ELLARD.
• Court: Alabama Supreme Court

33 So. 276

135 Ala. 433

BIRMINGHAM RY. & ELECTRIC CO. v. ELLARD.

Supreme Court of Alabama

January 13, 1903

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

Action by Margaret A. Ellard against the Birmingham Railway &amp Electric Company. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought by the appellee, Mrs. Margaret A. Ellard against the appellant, to recover damages for a personal injury, alleged to have been sustained by her while she was attempting to get on defendant's car as a passenger to be transported from East Lake, a suburb of Birmingham, to Birmingham; the plaintiff claiming $10,000.

The complaint contains four counts. In the first count, the plaintiff avers, as the negligence complained of, that, while attempting to get on the car, she was thrown around from the position in which she was, and to keep from falling to the ground she held onto an arm of the said car, and the sudden lurch given by said car inflicted the injuries complained of. In this count there is also a general averment that said injuries were caused by the negligence of defendant's employés in charge of said car, in the management and running thereof. The second count avers the negligence to be in the conductor, in having said train started before the plaintiff had time to get into or upon said car. The third count avers the negligence of the defendant's motorman in causing said car to start before the plaintiff had time to enter into or upon said car. And the fourth count avers that the injuries complained of were caused by the negligence of the motorman in causing the car to start suddenly, before plaintiff had time to enter into or upon said car.

Defendant pleaded the general issue, and by a special plea set up that the plaintiff herself was guilty of negligence in the negligent manner in which she attempted to get on the car which negligence on her part proximately contributed to her injury.

Upon the trial of the said cause, a large number of witnesses were examined both upon the question of the manner in which the injury was received and as to the extent of the injuries so received. Upon both of these propositions, the evidence is in conflict; the testimony of the witness for the plaintiff tending to show negligence on the part of the conductor or motorman in starting the car, while the plaintiff was attempting to get thereon, and further that her injuries were serious, permanent; while the testimony introduced on behalf of the defendant tended to show there was no negligence in the manner in which the car was started, and that the injuries received by the plaintiff were very slight.

The evidence introduced showed that the alleged injuries were caused while the plaintiff was attempting to board at East Lake an electric car operated by the defendant on its road from East Lake to the city of Birmingham; that the car was what is ordinarily known as an "open car," with a running board on either side, and with seats running crosswise from one side of the car to the other.

The plaintiff's testimony tended to show that as she attempted to board the car, and after she had placed one foot on the running board and had grasped the arm of the seat or handle attached to the side of the car for the purpose of assisting passengers to board it, and while her husband was holding her arm, assisting her, the car suddenly started with a jerk, throwing her forward, and, upon some one hallooing to the motorman, the car, after going a few steps, was suddenly stopped, and jerked her backwards; that during this time she had hold of the arm of the seat or handle above referred to and her arm and side hit the side of the car, or a part of the seat, and it was by reason of the jerks and blows received by her that she sustained the injuries complained of. It was further shown by the evidence that she at once entered the car as a passenger, and continued her trip to Birmingham, a distance of five or six miles; that upon reaching Birmingham she got off of the car and walked to the house of her daughter, which was several blocks from where she alighted from the car; that she remained at her daughter's house until the afternoon of the same day, and then walked back the several blocks and boarded a car on the same line of the defendant and went to East Lake.

The evidence for the plaintiff tended to show that, while at her daughter's house, she complained a great deal from the injuries which she had sustained by reason of the jerks and wrenches caused by the sudden starting of the car; that one of her ankles was severely wrenched or sprained and gave her a great deal of pain during the day, and that her ankle and side were rubbed with liniment during the day she spent at her daughter's house after the accident. There was other evidence introduced on the part of the plaintiff tending to show that the injuries caused by the sudden start of the car had permanently injured the plaintiff's health, had affected her nervous system, and that, since the time of the accident, she was unable to walk without crutches, or to do her regular duties. It was further shown by the evidence that at the time of the accident one H. L. Brown, who was the conductor on said car, was acting as motorman, and operating said car as motorman at the time of the accident, or at the time the plaintiff sustained the injuries.

The evidence for the defendant tended to show that the plaintiff had been in poor and delicate health for several years prior to the alleged accident, and that the results of the alleged injury were slight and were not permanent in character, and that the plaintiff was hysterical. There were physicians introduced as witnesses for the defendant who testified that they had made an examination of the plaintiff or had treated her, and that there were no symptoms of any disease or injury resulting from the accident; that the plaintiff's symptoms were purely subjective,--that is, such as were complained of; and that an examination showed no evidence of any injury which could be accounted for by the alleged accident.

The witnesses in the case were put by the court under the rule. Mrs. Fannie Reese was examined as a witness for the defendant. During her cross-examination by the plaintiff, she testified that during the day upon which she was examined she had talked to some of the witnesses or other people about the case. Thereupon the plaintiff asked her the following question: "You understood when you were put under the rule that you were not to talk about it [the case] didn't you?" The defendant objected to this question on the ground that it called for immaterial and irrelevant evidence, and upon the ground that the question was a proper inquiry for the court, and not for the counsel of the plaintiff, to make. The court overruled the objection and the defendant duly excepted. Upon the witness answering that she did, she was then asked the following question: "And still you talked to her [the person referred to by the witness] about it?" The defendant objected to this question upon the same ground, and duly excepted to the court's overruling its objection. The witness answered that she did. Thereupon the plaintiff asked the witness as to her having talked to other persons about the case after she was put under the rule. To each of these questions the defendant separately objected upon the same grounds as stated above, and separately excepted to the court's overruling each of said objections. These rulings of the court constitute the bases of the 10th, 11th, 12th, and 13th assignments of error. The other facts of the case necessary to an understanding of the decision of the court upon the present appeal are sufficiently stated in the opinion.

The bill of exceptions contains the following recitals as to the exceptions reserved by the defendant to a portion of the general charge of the court to the jury, which was given in writing: "The defendant having requested the court in writing to give its charge to the jury in writing, the court among other things, said to the jury: 'You are not to be governed by the number of witnesses, but by the weight and preponderance of the evidence.' Defendant's counsel excepted to that part of the court's charge in writing given to the jury as follows: 'You are not to be governed by the number of witnesses, but by the weight and preponderance of the evidence.' Thereupon plaintiff's counsel, in the presence and hearing of the jury, said to the court: 'I suggest you say "necessarily." ' The court thereupon, in the presence and hearing of the jury, said: 'I am willing to stand on it either way.' Defendant's counsel thereupon, in the presence and hearing of the jury, said to the court: 'If you will put in "necessarily" I will withdraw the objection.' The court thereupon, in the presence and hearing of the jury, addressing defendant's counsel, said, 'It is not necessary, but I will put it in to oblige you,' and the court did then and there put the word 'necessarily' in the written charge at the proper place. Defendant's counsel thereupon, in the presence and hearing of the jury, said to the court, 'I except to the remark of the court, that it is not necessary.' The court then said to the jury: 'You are not necessarily to be governed by the number of witnesses, but by the weight and preponderance of the evidence.' ''

The defendant requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the same as asked: "(1) If you believe from the evidence that by the starting of the car the plaintiff was not jerked, slung or thrown one way, and by the stopping of the car the plaintiff was not jerked, slung or thrown the other way, your verdict must be for ...