Birmingham Ry. Light & Power Co. v. Enslen

• Decision Date: 09 February 1905
• Citation: 39 So. 74,144 Ala. 343
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. ENSLEN.
• Court: Alabama Supreme Court

39 So. 74

144 Ala. 343

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

Supreme Court of Alabama

February 9, 1905

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Laura C. Enslen, as administratrix of Charles F. Enslen deceased, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed.

The accident, which it was alleged resulted in the death of plaintiff's intestate, was caused by the plaintiff being thrown from one of defendant's cars by reason of a sudden jerk of said car. There was testimony on the part of plaintiff tending to show that in being so thrown from defendant's car the plaintiff's intestate was thrown upon his head, and as a result of the injuries sustained in the fall he had cerebral meningitis, which was the disease from which he died. The testimony for the defendant tended to show that the plaintiff's intestate was not thrown from the car by reason of a sudden jerk thereof, and that the cerebral meningitis, which was the disease that immediately caused his death, was not superinduced by the fall. During the examination of Dr. R. A. Jones, a witness for the plaintiff, he testified that he was a practicing physician and had been practicing for 15 years. After the witness had testified as to the nature and cause of cerebral meningitis he was asked by the plaintiff a hypothetical question, in which there were stated facts and circumstances corresponding to the way in which the injury to the plaintiff's intestate was alleged to have been incurred, and then asked if cerebral meningitis developed, if it would have resulted from the injuries described. The defendant objected to the hypothetical question asked the witness upon the ground that it was not a proper question for an expert, and that there was no proof of any suffering, except the declarations of the decedent. The court overruled the objection, and defendant duly excepted. The witness answered that the cerebral meningitis would have been caused by the injury. The other facts of the case are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the jury several written charges, among which were the following: "(4) If the jury believe from the evidence that the sole cause of the injury to plaintiff's intestate, which ultimately resulted in his death, was caused by a sudden jerk of the car, and that he acted only as an ordinarily prudent person would have acted in getting upon the step of the car, then your verdict must be for the plaintiff. * * * (6) Although the jury believe from the evidence that plaintiff's intestate was guilty of negligence, yet, if the negligence of the defendant amounted to wantonness or willfulness, then plaintiff can recover, notwithstanding the negligence of plaintiff's intestate, provided the jury believe that the injuries received caused or contributed to his death. (7) If the jury believe from the evidence that the death of plaintiff's intestate was caused or contributed to by a sudden jerk of the car while he was upon the steps of the car preparing to alighting, and that at the time of the injury plaintiff's intestate was not guilty of contributory negligence, your verdict must be for the plaintiff. * * * (10) If the jury believe from the evidence that at the time of the injury to plaintiff's intestate, if they believe he was injured, that the conductor of the car was looking at and knew plaintiff's intestate was in the act of alighting at a regular stopping place, and the conductor, knowing this, rang the bell for the motorman to proceed, and he (the motorman) started the car with a sudden jerk and threw plaintiff's intestate from the car, then in that event the defendant's conductor was guilty of wanton or intentional negligence." The defendant separately excepted to the court's giving each of the several charges asked by the plaintiff.

Walker, Tillman, Campbell & Walker, for appellant.

John E. Miles and Bowman, Harsh & Beddow, for appellee.

DOWDELL J.

This is an action by Laura C. Enslen, as administratrix of the estate of Charles F. Enslen, deceased, against the defendant Birmingham Railway, Light & Power Company, to recover damages for the wrongful killing of plaintiff's intestate. The complaint contained two counts, in each of which it is averred that the wrong complained of was committed by the Birmingham Traction Company, a corporation; and it is further averred that on the 5th day of November, 1900, the Birmingham Traction Company consolidated with the defendant corporation, under the laws of the state of Alabama, which consolidated company assumed the name of the defendant, etc. The plaintiff filed interrogatories to the defendant for the purpose of showing the consolidation as charged, and the further averment in the complaint that the Birmingham Traction Company was operating the railroad at the time of the alleged injury. Answering these interrogatories, the defendant admitted that the traction company was operating the railroad at the time of the alleged injury, and that the consolidation was had as averred, and further stated that subsequent to said consolidation "the consolidated company, the Birmingham Railway, Light & Power Company, effected a consolidation with the Birmingham Railway & Electric Company, and the last consolidated company assumed the name of the Birmingham Railway, Light & Power Company." It is not stated when the second consolidation took place, nor how or under what authority it was effected; but it is admitted that the defendant preserved its...