Birmingham Ry., Light & Power Co. v. Wilcox

• Decision Date: 17 April 1913
• Citation: 61 So. 908,181 Ala. 512
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. WILCOX.
• Court: Alabama Supreme Court

61 So. 908

181 Ala. 512

BIRMINGHAM RY., LIGHT & POWER CO. v. WILCOX.

Supreme Court of Alabama

April 17, 1913

Appeal from Circuit Court, Jefferson County; J.J. Curtis, Judge.

Action by J.R. Wilcox against the Birmingham Railway, Light & Power Company for damages for injury to his wife while a passenger. Judgment for plaintiff, and respondent appeals. Affirmed.

Count 1: "Plaintiff claims of defendant the sum of $15,000 damages, for that, heretofore, to wit, on the 16th day of August, 1910, the defendant was engaged in operating a street car line in the city of Birmingham, it being at such time a common carrier of passengers for hire, and on said date plaintiff's wife, Mattie E. Wilcox, desiring to go to her home, which was near Eleventh avenue and Twelfth street, took passage on one of defendant's cars, paying her fare thereon. And plaintiff avers that when the car upon which she, the said Mattie E. Wilcox, was riding, reached the point at which she was to get off at Eleventh avenue and Twelfth street, the same was stopped, but just before the plaintiff's wife arose from her seat, preparatory to alighting from said car, the same was caused to move with a jerk, and plaintiff was thrown violently against a seat in said car, or some other object. (Here follows catalogue of injuries, and allegations of damages resulting therefrom.) And plaintiff avers that the said injuries and damages were caused by reason of, and as a proximate consequence of, the negligent way in which the defendant conducted itself in and about carrying plaintiff's wife to her point of destination." Count 2 is similar in all respects to count 1, except that it alleges that the injuries and damages were caused by reason of, and as a proximate consequence of the negligent way in which the defendant conducted itself in and about the handling of its car on which plaintiff was riding to her point of destination. Count 3 is a practical replication of count 2. Count A states the same facts as the other counts in shorter form and alleges the negligence to be the negligent manner in which defendant conducted itself in and about handling its said car upon which his wife was traveling.

Tillman Bradley & Morrow, and Charles E. Rice, all of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

McCLELLAN J.

The only assignments of error insisted upon in brief relate to the action of the court in overruling demurrers to counts 1 2, 3, and A. The action is by the husband for injuries received by the wife while a passenger on the car of the appellant.

The argument, common to all of the counts, for error in the action stated, is rested upon the familiar rule announced in Johnson v. B.R.L. & P. Co., 149...