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

Decision Date07 May 1912
CourtAlabama Court of Appeals
PartiesBIRMINGHAM RY., LIGHT & POWER CO. v. BARRETT.

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

Action by R. C. Barrett against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

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

Frank S. White & Sons, of Birmingham, for appellee.

PELHAM, J.

An action was brought by the appellee against the appellant, a common carrier, for lost services of his wife, by reason of injuries alleged to have been sustained by her while a passenger on one of the appellant's cars. There was a verdict and judgment for the plaintiff, from which the defendant prosecutes this appeal.

The first count of the complaint, after stating the relationship of the parties and how the plaintiff's wife was injured and describing her injuries, etc., concludes in a separate paragraph alleging negligence in general terms as follows "And plaintiff avers that his wife's injuries were proximately caused by the negligence of the defendant in the negligent way or manner in which it run or operated its said car." The count stated a good cause of action and sufficient averment of negligence under the rules of pleading applicable to such cases as approved by the Supreme Court. Birmingham R., L. & P. Co. v. Harris, 165 Ala 483, 51 So. 607; Birmingham R., L. & P. Co. v. Selhorst, 165 Ala. 477, 57 So. 568; Birmingham R., L. & P. Co. v. Oden, 164 Ala. 1, 51 So. 240; Birmingham R., L. & P. Co. v. Jordan, 170 Ala. 530, 54 So. 280; Central of Ga. Ry. Co. v. Carleton, 163 Ala. 64, 51 So. 27; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 So. 349.

The second count of the complaint contains confused, inconsistent, or repugnant averments in alleging the responsibility for the injuries as due to or proximately caused by the defendant's servants or agents while acting in the line and scope of "his" employment, in that "he" inflicted the injuries, etc., while engaged in the line of "his" duties; but whether or not the demurrers sufficiently point out the defect and raise the question of this count's being subject to the vice discussed in the case of Birmingham R., L. & P. Co. v. Bennett, 144 Ala. 372, 39 So. 565, it is not necessary to decide, as the case must be reversed for reasons to be subsequently given, and the count is easily amended to avoid this question arising upon another trial.

The count should be so amended as to clearly aver that the employé or employés who caused the sudden movement or jerk of the car, or the employé or employés upon whose negligence reliance is placed for a recovery, is the servant or servants, employé or employés, of the defendant who were conscious of the danger and wantonly inflicted the injury.

The first two assignments of error going to the court's ruling on the defendant's demurrers to the complaint we have disposed of. The third assignment is that the court erred in giving the following written charge at the request of the plaintiff: "It is the duty of a street car company to exercise the highest degree of care known to human skill and foresight in regard to the carriage of its passengers, and the carrier is liable for the slightest degree of negligence." The appellant insists that the charge exacts a higher degree of care of defendant than is imposed by law, and does not limit the defendant's liability for negligence to that negligence proximately contributing to the injury sustained.

A charge that the law requires the highest degree of care diligence, and skill by those engaged in the carriage of passengers by railroads, known to careful, diligent, and skillful persons engaged in such business, was approved as "the universal doctrine of the courts and text-writers" by the Supreme Court of Alabama in the case of Montgomery & Eufaula Ry. Co. v. Mallette, 92 Ala. 215, 9 So. 363, and a long list of authorities was cited in support of the proposition. In a more recent case (So. Ry. Co. v....

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6 cases
  • Birmingham Ry., Light & Power Co. v. Barrett
    • United States
    • Alabama Supreme Court
    • November 21, 1912
  • Gulf & S. I. R. R. Co. v. Meyers
    • United States
    • Mississippi Supreme Court
    • May 14, 1917
    ...on Carriers (3 Ed.), Sections 893-896; 2 Wood on Railway Law, section 301-313; 4 Elliott on Railroads (2 Ed.), 1585; B. R. L. & P. Co. v. Barrett, 58 So. 760. trial court erred in giving the second instruction for the plaintiff, to wit: "Persons injured by a running train are presumed by la......
  • New Connellsville Coal & Coke Co. v. Kilgore
    • United States
    • Alabama Court of Appeals
    • May 9, 1912
    ... ... James ... L. Davidson, of Birmingham, and Ben G. Perry, of Bessemer, ... for appellant ... ...
  • Louisville & N.R. Co. v. Myers
    • United States
    • Alabama Court of Appeals
    • November 4, 1915
    ... ... Bradley & Morrow and E.L. All, all of Birmingham, for ... appellant ... Goodwyn ... & Ross, of ... asked an explanatory charge. Birmingham Ry., L. & P. Co ... v. Cockrell, 10 Ala.App. 578, 65 So ... See, also, ... Birmingham Ry. L. & P. Co. v. Barrett, 179 Ala. 274, ... 60 So. 262; Birmingham Ry., L. & P. Co ... ...
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