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

• Decision Date: 09 December 1911
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. DEMMINS.
• Court: Alabama Court of Appeals

57 So. 404

3 Ala.App. 359

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

Court of Appeals of Alabama

December 9, 1911

Rehearing Denied Jan. 30, 1912.

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by Tom Demmins against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The following are the pleas discussed in the opinion: (7) "For further answer to plaintiff's complaint as amended, and each count thereof, separately and severally the defendant says that, at the time said car ran upon or against the vehicle mentioned in the complaint in said cause one Robert Johnson was by and with the consent of the plaintiff in charge and control of said horse, vehicle, and harness mentioned in the complaint, and said Robert Johnson was himself guilty of negligence which proximately contributed to the damage alleged in the complaint, which contributory negligence consisted in this: Said Robert Johnson negligently caused or allowed said vehicle, harness and horse to go upon, across, or dangerously near said defendant's railroad track, and in dangerous proximity to said car, which was then and there being operated on said track, without first looking and listening for said car, then and there approaching on said track, and in dangerous proximity to him." (8) Same as 7, down to and including the words "consisted in this," and adds: "Said person, having looked and seen said car approaching in dangerous proximity to him, nevertheless thereafter negligently caused or allowed said horse, when attached to said vehicle by means of said harness, to go upon or dangerously near said track, in front of said car, after having seen that said car was fast approaching said vehicle." (9) Same as 7, down to and including the words "consisted in this," and adds: "Said person having been warned of the near approach of said car nevertheless thereafter allowed said horse, which was attached to said vehicle by said harness, to go upon or dangerously near the said track, in dangerous proximity to said aproaching car; said Johnson having charge and control of said vehicle by and with the consent of defendant." (10) Same as 7, down to and including the words "consisted in this," and adds: "Said Johnson, while acting in the line and scope of his employment, negligently caused said horse, while attached to said vehicle by means of said harness, to go upon, across, or dangerously near the said railroad track, without first looking or listening for said car, which was then and there approaching the said place where said Johnson so caused said horse to go upon, across, or dangerously near said track, at such a rate that it was impossible to stop said car before it struck said vehicle."

The demurrers were: "The plea states contributory negligence in the alternative; that plaintiff is not sufficiently shown to be responsible for the alleged contributory negligence; that it does not sufficiently appear that there was any contributory negligence which proximately contributed to the injuries suffered by the plaintiff; that the second count was for wantonness; that the facts averred are not sufficient to amount to negligence as a matter of law; that the pleas are conclusions of the pleader, are not sufficiently specific, and raise an immaterial issue."

The following charges were given at the request of the plaintiff: (1) "If a car operated by a street car company upon a public street in Birmingham strikes and injures the property of another, there is a prima facie presumption that the street car company operating the car was guilty of negligence in so injuring the property of another, and the burden of proof is upon the street car company in that event to acquit itself of negligence." (2) "There is no issue of contributory negligence in this case, and whether Robert Johnson, the driver, was guilty of contributory negligence or not, if the jury are reasonably satisfied from the evidence that plaintiff's complaint, or either count thereof, is true, the court charges the jury that the jury must find for the defendant." (3) "If the jury are reasonably satisfied from the evidence that either count of plaintiff's complaint is true, then the jury must find for the plaintiff, whether the driver of the hack was guilty of contributory negligence or not."

The following charges were refused to the defendant: (5) General affirmative charge. (6) "If you believe the evidence in this case, you cannot award plaintiff anything for damages." (10) "The mere fact that a vehicle in charge of the person is injured on a public street in an incorporated city, by being struck by a street car on such street, does not raise a presumption that such injury was proximately caused by the negligence of those operating the car." (12) "The mere fact that a vehicle is struck by a street car on a public street in the city of Birmingham does not raise a presumption that it was struck by reason of the negligence of the person or persons in charge of the car." (14) "The burden of proof in this case is on the plaintiff to reasonably satisfy you by evidence that the injuries inflicted on his property were proximately caused by the negligence of the conductor and motorman in charge of the car which struck said vehicle, or by the negligence of one of them." (15) "If you are reasonably satisfied from all the evidence in this case that the motorman in charge of the car that struck plaintiff's vehicle was keeping a diligent lookout for obstructions on the track in front of said car, and that said vehicle and horse came upon said track suddenly, and that said motorman, immediately after seeing them make the first move that indicated that they would go upon said track, used all the means at his command and did everything in his power to stop said car, until it was stopped, you must find for the defendant." (16) "If you are reasonably satisfied from all the evidence in this case that the motorman in charge of the car that struck plaintiff's vehicle was keeping a diligent lookout for obstructions on the track in front of said car, and that said vehicle and horse came upon said track suddenly, and that said matorman, immediately after seeing them make the first move that indicated that they would go upon said track, used all the means at his command and did everything in his power to stop said car, until it was stopped, you must find for the defendant." (18) "If you are reasonably satisfied from the evidence in this case that, when the car that struck plaintiff's vehicle turned into Avenue B, plaintiff's horse and vehicle were in such a position as would have permitted the car to have passed them without coming in contact with either the horse or vehicle, and were going along said Avenue B towards Seventh street, and that there was nothing to indicate to the motorman in charge of said car that the position of said vehicle and horse would be changed, so as to cause said car to come in contact with said vehicle and horse, then the motorman had the right as a matter of law to assume that the position of said vehicle and horse would not be changed before said car would pass them." (19) "If you are reasonably satisfied from all the evidence in this case that, when the car that struck plaintiff's vehicle turned into Avenue B, plaintiff's horse and vehicle were going along Avenue B towards Seventh street at such a distance from the track on which said car was being run as would have permitted said car to have passed them without coming in contact with any of plaintiff's property, and that there was nothing to indicate to the motorman in charge of said car that said horse and vehicle would go any closer to said track before they were passed by said car, then the motorman had the right as a matter of law to assume that said vehicle and horse would not go upon or sufficiently near said track to prevent said car from passing them without coming in contact with either of them; and if you are further reasonably satisfied from the evidence that the said motorman was keeping a diligent lookout for obstructions on or near said track, and that, when he saw the first movement of said vehicle and horse indicating or tending to indicate to him that they would go upon or in the direction of said track, he immediately used all the means possible in an effort to stop said car, and did everything in his power to stop the same, until it was stopped, you must find for the defendant."

Tillman, Bradley & Morrow and John S. Stone, for appellant.

Harsh, Beddow & Fitts, for appellee.

DE GRAFFENRIED, J.

This suit was brought by appellee against the appellant for damages which he alleges in his complaint he sustained by reason of the negligence of the appellant's servants while acting in the line of their employment in the management of an electric car. There were two counts to the complaint, one alleging that the damages were caused by the negligence, and the other by the wantonness, of appellant's servants or agents. The appellee's theory was that, while a hackman in his employ was driving one of his closed hacks along one of the streets of the city of Birmingham and, at the time of the injury, was driving upon the track of appellant, one of appellant's electric cars, traveling behind the hack and upon the same track and in the same direction and at a greater rate of speed, through the negligence of the motorman and conductor of the car, or one of them, ran into the hack and caused the damage complained of; that it was raining at the time; and that the driver, being in a closed hack, knew nothing of the approach of the car, and that, if he did know of its approach and was himself negligent in being on the track nevertheless, that such negligent act was a mere conditio...