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

• Decision Date: 06 April 1909
• Citation: 161 Ala. 461,49 So. 434
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. JUNG.
• Court: Alabama Supreme Court

49 So. 434

161 Ala. 461

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

Supreme Court of Alabama

April 6, 1909

Rehearing Denied May 11, 1909.

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

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

The original first count was in the following language "Plaintiff claims of the defendant, a body corporate doing business as a common carrier of passengers for hire in Jefferson county, Ala., $30,000 damages, for this: That on to wit, January 10, 1904, plaintiff, while a passenger of defendant en route from Bessemer, in Jefferson county, state of Alabama, to Birmingham, in said state and county, was injured, in said state and county, as follows Plaintiff's left knee was crushed, and his left leg crushed and mangled, thereby necessitating amputation at the knee joint, inflicting upon plaintiff excruciating physical and mental pain, suffering, and agony, causing plaintiff to endure for the remander of his natural life great inconvenience and mental disquietude, and permanently rendering plaintiff less able to earn a livelihood. Plaintiff avers said injuries to have been caused proximately by the negligence of defendant in and about carrying plaintiff as a passenger, all to plaintiff's damages as aforesaid." The amended counts 2 and 3 are as follows: Count 2: Same as count 1, down to and including the words "less able to earn a livelihood," with this added averment "Plaintiff avers said injuries to have been proximately caused by the negligence of the servant or agent of defendant while acting within the line and scope of his employment in and about the carriage of plaintiff as a passenger of defendant." Count 3: Same as 1, through the allegation of injury, with the added averment that "said injuries were proximately caused by the wanton, willful, or intentional conduct of the defendant's servants or agents while acting within the line and scope of their employment in and about the carriage of plaintiff as a passenger of defendant, which willful, wanton, or intentional conduct consisted in this: The servant or agent aforesaid wantonly, willfully, or intentionally caused a car to be set in motion, with the knowledge that plaintiff would probably be injured thereby, and with reckless disregard of the consequences."

Demurrers raised the points that the allegations of the count are vague, uncertain, and indefinite, and that no facts are averred showing wherein or how the defendant is guilty of negligence in and about carrying plaintiff as a passenger, and that the averments of negligence are too general to put defendant on notice.

The following portion of the oral charge was excepted to: That noted in assignment 7 is as follows: "If, however, you are reasonably satisfied from the evidence in the case that he got off the car without the consent or permission of the conductor, and was in the act of boarding it, and attempting to board it, and the conductor, with the degree of reckless indifference that would be the equivalent of a willful or intentional injury, started the car, and he was injured, and that was the proximate cause of his injury, then the plea of contributory negligence would not be an answer to that phase of the case." In assignment 8: "Now, there are two or three theories of law, gentlemen, that arise at this juncture of the case, by which plaintiff may recover, if you are reasonably satisfied that he is entitled to recover in any aspect of the case, and that law is that, even if that car was not stopped there for the purpose of allowing passengers to get on or off--that is, if it was stopped there for meeting and allowing another car to pass--and if you are reasonably satisfied that the conductor did allow him to get off for the purpose I have spoken about, why then it would have been (if the conductor knew it, it would have been) the duty of the conductor to give him a reasonable opportunity to get on the car again, and it would have been the duty of the conductor to see and know that he was not in the act of boarding the car before moving it, and it would have been his duty to see and know that he was not in a position of peril in attempting to board the car before moving it." In assignment 9: "If you are reasonably satisfied that the conductor did allow him to get off for that purpose, and if you are reasonably satisfied the conductor did not give him a reasonable opportunity to get back, and if you are reasonably satisfied that while plaintiff was in the act of boarding the car that he signaled it forward, and it did move forward while he was in the act of boarding it, why the plaintiff would be entitled to recover on the theory of simple negligence."

The following charges were refused to the defendant: (1) "I charge you that there is no evidence in this case that the defendant's conductor knew that the plaintiff was boarding the car, if you believe that he was in that position." (2) "I charge you that the plaintiff cannot recover in this case, unless each member of the jury is reasonably satisfied from the evidence that when the train was signaled to go forward, and actually started forward, the plaintiff was in the act of boarding the car, and was injured by reason of the train starting while he was in that position." (3) Affirmative charge as to the first count. (4) Affirmative charge as to the third count. (5) Affirmative charge as to the second count. (6) "I charge you, gentlemen of the jury, that you cannot find for the plaintiff unless you and each of you are reasonably satisfied from the evidence that the conductor knew that the plaintiff was in the act of boarding the train when he signaled it to go forward." (7) "If the plaintiff attempted to board the train while it was in motion, then I charge you that he cannot recover." (8) "Under the facts in this case, the law does not impose the duty upon the conductor of seeing and knowing that the plaintiff was not in a position of peril before starting the train." (9) "You cannot find a verdict for the plaintiff unless you and each of you are reasonably satisfied from the evidence that when the car started the plaintiff was in the act of boarding the car."

There was judgment for the plaintiff in the sum of $2,925.

Tillman, Grubb, Bradley & Morrow, for appellant.

Denson & Denson, for appellee.

McCLELLAN J.

The complaint, after amendment, contained four counts, the last of which was removed from consideration of the jury by instruction of the court. The original first count is in case, and those added by amendment are also in case, thus distinguishing the pleading in this action from that considered and treated in Freeman v. Central of Ga. R. R. (Ala.) 45 So. 898, where the departure attempted was from trespass to case. The amendment here was properly allowed, and had relation back to the commencement of the suit. Highland A. & B. R. R. v. Sampson, 112 Ala. 425, 20 So. 566.

The first three counts of the complaint were sufficiently definite in averments of culpable negligence, under our repeatedly declared rule. The pleas were the general issue and contributory negligence; but, of course, the latter defense was not available against the charge of willful or wanton misconduct producing the injury.

The plaintiff took passage on the interurban cars of the defendant from Bessemer to Birmingham. These cars traversed a distance of about 15 miles between the two cities, but were without closets for the convenience of passengers. The plaintiff, who was the only witness testifying to the circumstances of the injury itself, thus described it: "The car was stopped there; had stopped at the time he got off; went to get back on the car, and had one foot on the steps and one foot on the ground, and his hand on the car handle, and the bell rung, and the car run, and the last car caught his leg, the colored people's car. He was riding in the first car. He tried to catch the first car, and the last car caught his leg. He tried to get on the back end of the first car." The conductor testified that he knew nothing of the plaintiff's desire or intention to leave the car, nor of his leaving it, nor that he knew anything of the injury until some time afterwards. There was testimony for the plaintiff tending to corroborate him in the respect that he sought and secured the consent of the conductor to leave the then stationary car to urinate.

It was shown, without conflict, that the car in question had taken this siding for the purpose of permitting an opposing train to pass, and that this place was not a regular or scheduled station for the reception and discharge of passengers, unless as appellee contends, the custom or usage, stated by the conductor, which we will set out later, brought this place within the class defined, raising the duty thus declared in North Birmingham R. R. v. Liddicoat, 99 Ala. 545, 549, 13 So 18, 19: "If, however, a carrier is in the habit of receiving or discharging passengers at a place other than a regular station, * * * they have the right to presume that it is safe to board or quit the train at such place, unless the risk in doing so is so obvious that a man of ordinary care and prudence would not, under like circumstances, make the attempt. * * * It is immaterial for what purpose its cars are stopped at such place, other than a regular station, whether in consequence of a duty enjoined on it by law, as when approaching the track of an intersecting road, or arising from convenience or necessity in the usual mode of operating its trains. If the public are in the habit of entering or quitting its cars at such place, without objection from its agents or servants, such persons are entitled to the...