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

• Citation: 177 Ala. 475,59 So. 213
• Court: Supreme Court of Alabama
• Decision Date: 09 May 1912
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. SIMPSON.

59 So. 213

177 Ala. 475

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

Supreme Court of Alabama

May 9, 1912

Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.

Action by J. A. Simpson against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The second plea is as follows: "For further plea and answer to each count of the complaint, separately and severally, and says that the plaintiff is guilty of negligence which proximately contributed to his own injury, and which negligence consisted in this: Plaintiff negligently drove a young and spirited horse in close proximity to a railroad engine which was under steam, and in close proximity to the avenue along which plaintiff was driving when defendant's car was approaching, and when plaintiff knew that the said car was approaching, and that his said horse would likely be frightened by said engine and shy upon defendant's track and in front of the approaching car."

Assignments of error 3, 4, 5, 6, and 7 are to questions propounded to the plaintiff as to what kind of work he had done, and where, and his wages while engaged in such work.

The oral charge of court, which was excepted to, is as follows "Now, the second and fourth counts of complaint are the counts that allege wanton negligence, and to constitute wanton negligence the act, at the time it was committed, must be committed with knowledge and consciousness that it would probably or likely or naturally result in injury. That is what it takes to constitute wanton or willful negligence. There must be a recklessness, and the act must be done with the consciousness at the time that it is--that it will probably or naturally or likely result in injury. That is what it takes to constitute willful negligence, and the proof would have to come up to that requirement to entitle this plaintiff to recover under the fourth count of the complaint." This was assignment 8.

Assignment 9 was as follows: "The court erred in charging the jury that simple negligence is an act or an omission to act where the law imposes upon a party the duty to act. No intention or wantonness enters into simple negligence."

The tenth assignment of error is as follows: "The court erred in charging as follows: 'If you should decide this defendant has been guilty of any wanton or willful negligence, as alleged in the second and fourth counts, you could then give this plaintiff what is known as "vindictive damages" or "smart money," and you would be allowed under those circumstances to give him such sum, give this plaintiff such sum, within your judgment you agree to give him. It would go to the plaintiff but it is administered as a rebuke or as a punishment to the defendant for being guilty of willful or wanton negligence. They allow this punitive damages for the purpose of hindering a repetition of any willful or wanton negligence on the part of this defendant against or on the part of any one else that might be guilty of any wanton or willful negligence.' "

The following charges were refused to defendant:

(11) "The court charges the jury that if they believe from the evidence that plaintiff was driving down Caroline avenue in his cart, with the horse hitched thereto under control of the plaintiff, and traveling down the regular roadway used by travelers on said avenue, and that the car of defendant was approaching the plaintiff down said avenue, then the motorman in charge of the said car was under no duty to stop the said car until it became reasonably apparent that plaintiff's horse would go upon the track in front of said car and likely cause plaintiff injury by a collision with said car."

(13) "The court charges the jury that if the motorman in charge of defendant's car, when 75 or 100 yards away, saw the plaintiff on the track of defendant, but it also became apparent that the plaintiff saw the approaching car, and was near enough to the traveled part of the street to have readily turned off the track and out of the way of danger the motorman would have the right to presume that the plaintiff would get off the track, out of danger, until by his conduct he showed that it was his purpose not to do so, or that he could not get out of the way of danger; and it would be the motorman's duty to begin to stop the car only from the moment that plaintiff's conduct made it reasonably manifest that he did not intend to get out of the way, or when from plaintiff's position it became reasonably apparent that he could not reasonably get off the track."

(14) "The court charges the jury that if they believe from the evidence that the plaintiff was driving down Caroline avenue in his cart, with the horse hitched thereto under control of the driver, and traveling down the regular roadway used by travelers on said avenue, then the motorman in charge of the said car would be under no duty to stop the car until it became reasonably apparent that the plaintiff's horse would go or shy upon the track in dangerous proximity to the approaching car."

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

Frank S. White & Sons, of Birmingham, and Mathews & Mathews, of Bessemer, for appellee.

MAYFIELD J.

This action is one for personal injuries. While appellee was driving a spirited horse, the cart to which the animal was attached collided with one of appellant's electric street cars, throwing appellee from the vehicle and injuring him. The plaintiff claimed that the horse became frightened and unmanageable; that while plaintiff was trying to control the horse it got upon defendant's street car track; and that, on account of the negligence or wantonness of defendant's motorman, the cart in which plaintiff was riding was struck by defendant's car, throwing plaintiff therefrom and injuring him. The accident occurred on one of the public streets or avenues of the city of Bessemer, Ala.

The defendant claimed that, as plaintiff was driving in a road near defendant's car tracks, his horse became frightened at an engine on another and different railroad, and ran the cart into or against defendant's car, thus causing the injury. The pleadings were so drawn as to raise these issues, together with that of contributory negligence, upon which the case was tried; and the trial resulted in verdict and judgment in favor of plaintiff in the sum of $2,500. The issues were therefore simple negligence, subsequent negligence, contributory negligence, and wantonness.

Count 1 declared on simple negligence,...