Birmingham Ry., Light & Power Co. v. O'Brien

• Decision Date: 22 January 1914
• Citation: 64 So. 343,185 Ala. 617
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. O'BRIEN.

64 So. 343

185 Ala. 617

BIRMINGHAM RY., LIGHT & POWER CO. v. O'BRIEN.

Supreme Court of Alabama

January 22, 1914

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by Mrs. Annie O'Brien against the Birmingham Railway Light & Power Company. Judgment for plaintiff and defendant appeals. Reversed and remanded.

The following is the complaint.

"Count 1. Plaintiff claims of defendant $20,000 as damages for that heretofore, to wit, on or about the _______ day of February 1911, defendant was operating an electric railway in the city of Birmingham, running cars and carrying passengers for hire. That on or about said date the plaintiff became a passenger on one of defendant's street cars, and paid her fare. That when she reached her destination she stepped off said car and started to cross the track in the rear of said car in the direction of her home, and that her foot became entangled in a wire attached to said car, and when it started she was jerked down and dragged a long distance, hurt, and bruised her flesh torn, her spinal column injured, and she has as a consequence of such injury, been confined to her bed almost constantly up to this time, and that she has suffered great mental and physical pain, has contracted large sums for doctor's bills in and about her treatment, and she alleges that her injuries were the proximate consequence of the negligence of the agents and servants of defendant who were in charge and control of said car, while acting within the line and scope of their duty under their employment, in negligently allowing said wire to be attached to said car."

Count 5: Adopts count 1 down to and including the words "about her treatment" and adds: "Plaintiff avers that said car was under the management and control of the servants of defendant, whose names are to plaintiff unknown, and that her injuries were caused by reason of and as a proximate consequence of the negligence of said servants of defendant, in that they while acting within the line and scope of their said employment in the management or control of said car, negligently caused said car to drag plaintiff by said wire thereto attached."

Ground D of the demurrer is as follows: "For aught that appears plaintiff was not a passenger at that time."

"J. That the duty therein exacted of defendant's said servant is greater than that required by law."

The assignment of error relative to the witness Howard is as follows: "[Speaking of the motorman] Do you remember whether he said anything or not? Answer: I don't think he said anything; no, sir." To witness Swan: "Did you apply the brakes as soon as the passenger told you there was something the matter?"

The following is charge 1: "The court charges the jury that if you believe the evidence in this case, you cannot find for plaintiff on account of any negligence on the part of defendants or its agents or servants, in allowing the wire which caught plaintiff to become attached to said car."

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

Hundley, Howard & Hunt, of Birmingham, for appellee.

McCLELLAN J.

Mrs. O'Brien, plaintiff appellee, was seriously injured under the circumstances to be stated. She boarded one of defendant's (appellant) street cars, in the business district of Birmingham, to go to a home in the residence section of that city. She thus became a passenger of the common carrier. Upon arrival at her destination, Thirteenth avenue, she alighted, through the rear platform gate of the street car, on the right-hand side thereof, and turned to cross the track of the carrier a few feet behind the car, to go to the home, on the west side of the track, in which she was a guest. While she was on the track, behind the car, the car was put in motion; a strand of telephone or hay wire, attached to car and variously estimated by the witness to be from 10 to 22 feet in length, caught her foot in a loop at the loose end thereof, and dragged her, according to some of the evidence, about "31 steps," and to other evidence a much less distance. The place at which she was delivered by the carrier and where she alighted as at her destination appears to have been the usual stopping place for the reception and discharge of passengers on that line.

Under the doctrine pronounced and applied in Melton v. B.R.L. &amp P. Co., 153 Ala. 95, 45 So. 151, 16 L.R.A. (N.S.) 467, it is clear that amended counts 1 and 5, which the report of the appeal will contain, show, by their averments, that the relation of passenger and carrier had not terminated when this injury was suffered by Mrs. O'Brien. While the pleader might well have concluded without specifying any...