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

• Decision Date: 07 November 1914
• Docket Number: 812
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. COLBERT.
• Court: Alabama Supreme Court

67 So. 513

190 Ala. 229

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

No. 812

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by James W. Colbert against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tillman Bradley & Morrow and Frank M. Dominick, all of Birmingham for appellant.

Harsh, Beddow & Fitts, of Birmingham, for appellee.

GARDNER J.

This action was brought by the appellee, employed by the appellant as a motorman on one of its street cars, for injuries sustained in a collision of said car, which was at the time being operated by said appellee as such motorman, with an engine on the track of the Louisville & Nashville Railroad; the said accident occurring at the crossing of the two tracks.

The complaint originally contained four counts, but counts 3 and 4 were charged out by the court at the request of the defendant (appellant here). Counts 1 and 2, upon which the cause was submitted to the jury, were framed under subdivision 1 of the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U.S. Comp.St. 1913, § 8657]); the first relying for recovery upon the defective brakes on the car, and the second upon the defective car itself.

The defendant interposed a number of pleas of contributory negligence. Demurrers were sustained to pleas 2, 4, 5, 6, 7, and 9, and issue was joined on pleas 1 (the general issue), 3, 8, and 10.

The rulings of the court sustaining demurrers to pleas 4 and 6 constitute the first four assignments of error.

Plea 3 charged the plaintiff with negligence which proximately contributed to his alleged injuries in this:

"Plaintiff, knowing of the existence of the alleged defect, and knowing that, in order to stop the said car before it would get in such a position as to be struck by any engine or train which might cross the crossing at which the said collision occurred, efforts would have to be made earlier than would be the case had such defect not existed, negligently deferred making any effort to stop the said car soon enough to prevent the same from getting into such a position as to be struck by the said engine, as alleged therein."

The negligence charged is in substance that the plaintiff waited until too late to attempt to stop the car; that he deferred making any effort to stop the car until too late.

A careful examination of pleas 4 and 6 convinces us that the gist or substance of these pleas is the same as that of plea 3, expressed in different language. It is insisted, however, that pleas 4 and 6 set up a violation of a rule of the company as to stopping at such crossing and waiting for signal to cross, etc. While this is true, yet such averments are joined with averments of the character found in plea 3, and would therefor be of no avail without proof also of those of such character as in plea 3. The pleas, therefore, relieved defendant of nothing required by plea 3, but required proof of substantially the same matter, and these averments but added greater burden to the defendant.

The fact that the rule added precautions as to starting again after stopping is immaterial, of course, when no stopping is shown. True, plea 6 makes reference to the speed of the car

at the time plaintiff first undertook to stop the same, but such averments of the plea show that they are rather of evidential character of the same matter set up in plea 3; that is, in substance, that plaintiff commenced stopping the car too late.

It is therefore unnecessary that we pass upon the sufficiency of pleas 4 and 6, as we are of the opinion that the defendant received the full benefit thereof under plea 3, which did not impose upon defendant some of the burdens of each of said pleas, and which imposed no burden not imposed by both of the others. If there was any error in the ruling of the court as to said pleas--a question not determined--it was without injury.

Whether or not the plaintiff deferred making any effort to stop the car until too late was made an issue by the defendant's pleas. The witness Underwood, who had been a motorman for more than two years and had run over this route a great many times was asked by plaintiff where was the regular place to begin to stop the car, between Twenty-Ninth avenue (the last stop) and the Louisville & Nashville crossing. The question was objected to upon the ground that it called for immaterial, irrelevant, incompetent, and illegal testimony. If there was a regular stopping place known to this witness, it cannot be said to have been immaterial and irrelevant under the issues in the case. If the question could be said to be objectionable for assuming that there was a regular stopping place, no such objection was interposed. The specific objection that it was not shown that plaintiff stopped at that place on the occasion complained of was not applicable to the question as to what was the regular place to begin to stop for the crossing. There was no error in the ruling of the court. The witness answered, "I should judge about halfway." This answer of the witness is now insisted upon by counsel for appellant, as a basis for the affirmative charge for the defendant, when taken in connection with the testimony of the plaintiff as to what point he first began to stop the car; the insistence being that this evidence clearly and fully establishes the averments of plea 3.

The affirmative charge should never be given where the evidence is open to a reasonable inference of a material fact unfavorable to the right of recovery by the party requesting the charge. Carter v. Fulgham, 134 Ala. 238, 32 So 684; 5 Mayf.Dig. p. 150. It will be observed that the witness made no effort to fix the regular stopping place with anything approaching mathematical certainty, and the plaintiff in one part of his testimony stated that when "he began to stop it might have been about halfway, or a little before or a little after; couldn't say positively." A discussion, however, of the evidence would here serve no good purpose. We have carefully considered it, and, in the light...