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

• Decision Date: 14 May 1912
• Citation: 59 So. 358,5 Ala.App. 546
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. LEACH.
• Court: Alabama Court of Appeals

59 So. 358

5 Ala.App. 546

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

Court of Appeals of Alabama

May 14, 1912

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by William C. Leach against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Affirmed

The caption in the bill of exceptions referred to in the opinion is as follows: "That at the conclusion of the court's oral charge the defendant in open court, and in the presence of the jury, and before it retired, requested the court separately and severally in writing to give to the jury each of the following charges. The court thereupon separately and severally refused to give each of said written charges so requested by the defendant, and indorsed on it the words: 'Refused. C. C. Nesmith, Judge.' And the defendant then and there in open court, in the presence of the jury, and before it retired, separately and severally excepted to the refusal of the court to give each of the charges requested by it." The fourth charge is as follows: "The court charges the jury that, if they believe the evidence, the motorman in charge of the car which struck plaintiff was not required to stop his car before crossing Twenty-Fourth Street. (5) The court charges the jury that the mere fact, if it be a fact, that the car which struck plaintiff was running at 20 miles an hour as it was crossing Twenty-Fourth street, is simple negligence only." "(7) The fact, if it be a fact, that the said car which struck plaintiff was running at 20 miles an hour at the time of the accident, does not in and of itself constitute wantonness."

Tillman Bradley & Morrow and Charles E. Rice, all of Birmingham, for appellant.

Allen & Bell, of Birmingham, for appellee.

PELHAM, J.

The appellee brought his suit in the trial court to recover damages of the appellant for personal injuries, and the case was submitted to the jury on the second count of the complaint alone, alleging willful, wanton, or intentional conduct on the part of the defendant, its servants or employés in charge of defendant's street car in running the same against and injuring appellee, who was attempting to cross one of the streets in the city of Birmingham in the nighttime at or near the intersection of two public streets.

The assignments of error are based on the court's refusal to give certain charges requested in writing by the appellant and overruling a motion for a new trial. The appellee insists in two briefs filed by counsel that no separate exception is shown to have been reserved to the refused charges, and that therefore the appellant is in no position to complain of the court's action in refusing the charges. Under the statute separate exceptions to written charges given or refused are presumed. Code, § 3016; Choate v. Ala. Gt.

So. R R. Co., 170 Ala. 590, 54 So. 507; O'Connor v Dickson, 112 Ala. 304, 311, 20 So. 413.

Charges must be requested separately, and if requested in bulk the court cannot be put in error for refusing all if one of them is bad. Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 So. 89; Jones v. State, 150 Ala. 54, 43 So. 179.

The case relied upon by appellee (Town of Vernon v. Wedgeworth, 148 Ala. 490, 496, 42 So. 749, and the authorities cited there, which are also cited by appellee) is to the same effect, and these authorities do not hold, as contended by appellant, that the trial court cannot be put in error for refusing charges unless an exception to each separate charge is shown, but only that if not requested separately the court will not be put in error if one of the charges is erroneous.

The recitals in the bill of exceptions in this case clearly show that the charges were requested separately, and that each was separately considered and marked "refused" by the presiding judge (Ala. S. & W. Co. v. Griffin, 149 Ala. 423, 42 S.W. 1034), and there can be no question but that the action of the trial court in refusing each of these charges is properly presented to this court for review. (The reporter will set out in the statement of the case the caption immediately preceding the refused charges shown by the bill of exceptions on page 20 of the transcript.)

The appellant insists that the evidence as shown by the bill of exceptions contains no proof that the defendant owned or operated the railroad, or the car that struck the plaintiff or that the motorman was an employé of the defendant company. This point does not seem to have been disputed on the trial, and the entire course of the trial and the charges requested by the defendant plainly show that the ownership and operation of the car by the defendant was not questioned or challenged in any way, but was treated throughout as matter over which there was no controversy. The witness Stewart was asked about the equipment of the cars of the Birmingham Railway, Light & Power Company with reference to the time of the injury, and the defendant's counsel, among other objections, objected to the question on the ground that the condition of the particular car causing the injury was not shown to be known to the witness. The defendant requested charges in which it referred to the car in question as the defendant's car, and to the person operating the car as the motorman in charge of the car. In passing upon a similar objection in a comparatively recent case, and made by this same appellant, the Supreme Court has said: "It occurs to us that the objection is too technical to be meritorious. The course of the trial, the questions propounded by the defendant's counsel, and the charges asked by the defendant, all indicate that the point now raised was not disputed. The ownership and operation of the cars by the defendant company was not raised on the trial, but appears to have been unquestioned." B. R. L. & P. Co. v. Taylor, 152 Ala. 105, 109, 44 So. 580, 581. What was said in that case applies equally, and with as compelling force, to the...