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

• Decision Date: 02 July 1907
• Citation: 152 Ala. 105,44 So. 580
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. TAYLOR.
• Court: Alabama Supreme Court

44 So. 580

152 Ala. 105

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

Supreme Court of Alabama

July 2, 1907

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by E. D. Taylor against the Birmingham Railway, Light & Power Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action of damages for personal injuries received by a passenger in alighting from a car on defendant's line. The allegations of the first count are that plaintiff was a passenger on one of said cars which was going from Birmingham to Avondale, and upon reaching a point at or near the intersection of Twentieth street and Avenue F the said car stopped at a point where it was accustomed to stop for passengers to alight, and plaintiff attempted to alight from said car, and while he was in the act of alighting, and before he had time to alight from said car, the same moved suddenly, throwing plaintiff to the ground and injuring him etc.; and plaintiff avers that his said injuries were proximately caused by the negligence of defendant's employés in charge of said car in the management and operation thereof. The second count is the same as the first except that the negligence is alleged to the conductor. The third is the same as the first, except the negligence is alleged to the motorman. The facts sufficiently appear in the opinion.

Charge 1 given for plaintiff is as follows: "I charge you gentlemen of the jury, that if you believe from the evidence that the car stopped at or near the switch adjacent to Avenue F for passengers to get off, and that the plaintiff was in the act of alighting, but that before he had time to alight the car gave a sudden jerk, and threw the plaintiff, and injured him, and that this sudden jerk was the sole proximate cause of plaintiff's injury, then you must find in favor of the plaintiff." The other charge assigned as error appears in the opinion.

There was verdict for plaintiff in the sum of $1,500, and defendant appeals.

Tillman Grub, Bradley & Morrow, for appellant.

A. O. Lane and W. K. Terry, for appellee.

HARALSON J.

1. The first assignment of error is, that the court erred in overruling defendant's objection to the question to Spencer, witness for plaintiff, viz.: "At that time (of the injury) state to the jury whether cars were in the habit of stopping just this side of Avenue F on Twentieth street to let passengers off and on?" Defendant objected to the question because it called for irrelevant, immaterial and incompetent evidence, and because it was not an inquiry in reference to cars on the line on which plaintiff was injured.

There can be no doubt, but that the question related to the car on which plaintiff was a passenger. The plaintiff claimed that they stopped at Avenue F on Twentieth street, and started while he was in the act of alighting, while the defendant's contention was, that it did not stop there. The jury could not have been confused or misled by the question; and if the cars had been in the habit of stopping there, the evidence would tend to support plaintiff's contention. M. & E. R. Co. v. Stewart, 91 Ala. 422, 8 So. 708.

2. The plaintiff asked his witness, Dr. Davis, "Well, now, the injury about the rib, to what extent was that injured?" The objection of defendant to the question was, that it called for testimony in regard to a special injury not claimed in the complaint. The allegation of the complainant was, that while he was in the act of alighting, the car moved suddenly forward and threw "plaintiff to the ground and severely injured him internally (rupturing him) and also injuring him on the body externally, and greatly injuring his nervous system," etc. When the question was propounded no objection was interposed to it and the witness...