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

• Decision Date: 29 June 1911
• Citation: 174 Ala. 657,56 So. 1013
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. FOX.
• Court: Alabama Supreme Court

56 So. 1013

174 Ala. 657

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

Supreme Court of Alabama

June 29, 1911

Rehearing Denied Dec. 21, 1911.

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

Action by Carl Fox, administrator of Lillie Newman, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The following counts of the complaint are referred to in the opinion: (1) "Plaintiff, who sues as administrator of the estate of Lillie Newman, deceased, claims of the defendant, a corporation, the sum of $30,000 as damages, for that, to wit, on the 21st of November, 1905, the defendant company was engaged in operating an electric car line in the city of Birmingham, and along Nineteenth street, between Sixth and Eighth Avenues North, in said city, and used cars drawn or propelled by electricity for the transportation of passengers upon said streets. Plaintiff avers that on, to wit, the 21st day of November, 1905, the servants, agents or employés of the defendant company, whose names are unknown to plaintiff, who had charge and control of a certain car of the defendant company, operating the same upon said Nineteenth street, did so negligently run and operate said car that the same ran over, upon, or against the deceased, then and there and thereby inflicting upon her injuries, bruises, and wounds, and then and there and thereby causing her death which occurred on the 22d day of December, 1905." The second count is the same as the first, except that it is averred that one Gillespie, whose name is otherwise unknown to the plaintiff, was the agent, employé, or servant of the defendant who had charge and control of a certain car, etc. The third count is the same as the first count, down to and including the words "passengers upon said streets," where they first occur therein, and adds the following averment: "Plaintiff avers that on, to wit, the 21st day of November, 1905, the servant, agent, or employé of the defendant, whose name is unknown to the plaintiff, who was in charge or control of a certain street car or electric car upon said street, did wantonly and recklessly or intentionally cause the death of the deceased, by wantonly and recklessly or intentionally running said car over, upon or against the deceased, then and there and thereby greatly injuring her about the head, body, and limbs, and then and there and thereby causing her death, which occurred on, to wit, the 22d day of December, 1905." (4) Same as 3 except that the servant in charge or control of the car is alleged to have been named Gillespie. The amendment to the count was to insert the name of Dykes, instead of Gillespie.

Plea 7 is as follows: "Defendant, for further plea and answer to each count of plaintiff's complaint, separately and severally says that plaintiff's intestate was herself guilty of negligence which proximately contributed to her said alleged injuries and death, in this: Plaintiff's intestate, Lillie Newman, went upon or attempted to cross the railway track of the defendant in front of and in dangerous proximity to the defendant's said car, which was then and there approaching her on the said street, without looking for said car." Plea 8 is similar to 7, except that it alleges that plaintiff's intestate negligently attempted to cross the railway track of the defendant in front of and in dangerous proximity to the said car, which was then and there approaching her, without looking for said car.

The following charges were refused the defendant: (2) "The court charges the jury that, if you believe from the evidence that plaintiff's intestate attempted to cross the defendant's track in dangerous proximity to an approaching car, she was guilty of negligence." (3) "The court charges the jury that one who walks upon a street railway track must first look to see whether a car is approaching on the track." (5) "I charge you that if a pedestrian is negligent in crossing or attempting to cross a street railway track on a public highway, and such negligence proximately contributed in the slightest degree to an injury received by the pedestrian in being struck by a car on the said track, he cannot recover any damages on account of the mere failure of the motorman to keep a proper lookout for him, nor on account of the mere failure to sound the gong of said car." (6) "If the jury believe from the evidence that plaintiff's intestate was guilty of negligence in attempting to cross defendant's track, and that such negligence proximately contributed even in the slightest degree to her injury, then the plaintiff cannot recover on account of any mere negligence on the part of the motorman." (17) "The court charges the jury that if you believe from the evidence that the plaintiff's intestate negligently attempted to cross the defendant's track, and such negligence proximately contributed even in the slightest degree to the injuries received by her by being struck by defendant's car on such track, then the plaintiff in this case cannot recover any damages on account of the mere failure of the motorman to keep a proper lookout for the intestate, if you believe from the evidence there is such failure." (8) "If the jury believe from the evidence that the defendants' motorman was guilty of negligence, if you also believe from the evidence that the plaintiff's intestate was also guilty of the slightest negligence such as is pleaded, and that such negligence proximately contributed to her injury, you must find for the defendant, unless you also believe from the evidence that plaintiff's intestate was either willfully, wantonly, or intentionally injured." (9) "If you believe from the evidence that plaintiff's intestate was guilty of the slightest negligence, such as is pleaded in this case, and that such negligence proximately contributed to her injury then you cannot award plaintiff any damages for any mere negligence on the part of the defendant or its servants." Charge 11 was the affirmative charge as to the ninth count.

It appears from the record that after the trial of this case, and before the signing of the bill of exceptions, the judge trying the case became ill and unable to try cases, and that the proper authorities had designated another to serve as judge pending his recovery and ability to again assume the duties of his office, and that the bill of exceptions was signed by the judge trying the case, after the appointment of such other judge to take his place upon the bench.

Tillman, Bradley & Morrow and L. C. Leadbeater, for appellant.

Allen & Bell, for appellee.

ANDERSON J.

While it has been repeatedly held that the complaint in cases of this character need not define the quo modo, or specify the particular acts of diligence omitted, yet, when simple negligence constitutes the cause of action, it is incumbent upon the plaintiff to bring himself within the protection of the negligence averred by alleging such a relationship as would enable him to recover for simple negligence. L. & N. R. R. Co. v. Holland, 164 Ala. 73, 51 So. 365, 137 Am. St. Rep. 25; Gadsden R. R. v. Julian, 133 Ala. 373, 32 So. 135; Ensley v. Chewning, 93 Ala. 25, 9 So. 458.

Count 1, however, in the case at bar, meets the requirements, and shows that the plaintiff's intestate was not a trespasser upon the defendant's track, and was in a position to invoke the negligence averred. She was rightfully upon a street in the city of Birmingham, and had as much right to be there as did the car of the defendant. Their rights were equal, and they were both rightfully upon said public highway. The intestate as a citizen or traveler and the defendant, while operating a car on its own track, was simply using the highway as such in one of the uncommon but modern ways of travel, each one owing the other the duty to avoid a collision or injury by the use of ordinary care. The complaint sufficiently avers that the defendant was operating a car along or upon a street in the city of Birmingham for the transportation of passengers upon said street, and we must assume that the track was the ordinary street car track, and so embodied in the street and connected therewith as to become a part of the highway. Such a street railway as was described in the case of Glass v. M. & C. R. R. Co., 94 Ala. 581, 10 So. 215, and which was there conceded to be a part of the highway, but unlike the track dealt with in said case. There the roadbed was an ordinary steam railroad track, forming no part of the highway, and the injury occurred upon a trestle crossing a ravine. The case of Birmingham R. R. v. Jones, 153 Ala. 157, 45 So. 177, while holding that the track there considered was not a part of the highway, the opinion expressly excepted "what was known as street railways" usually constructed in such a manner as to be incorporated in and become a part of the street. The count showing that the intestate was not a trespasser, the defendant owed her the duty of not negligently hurting her.

It is next insisted that the complaint does not show what the intestate was doing when injured, that she may have been in such a position as to deprive her of protection even upon a highway. Precision and nice pleading would doubtless suggest that the pleader should aver that the intestate was traveling the street, crossing over or going up and down it, or whether on foot or in a vehicle or upon a horse, yet these averments are not absolutely essential, as the count shows that she was not a trespasser, but was, presumptively, rightfully upon the street when run over by the defendant's street car. If she was misusing the street, so as to make her position at the point when injured wrongful or improper, this would be matter of defense, as the complaint...