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

• Decision Date: 28 April 1906
• Citation: 41 So. 146,146 Ala. 277
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. JONES.
• Court: Alabama Supreme Court

41 So. 146

146 Ala. 277

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

Supreme Court of Alabama

April 28, 1906

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

"To be officially reported."

Action by Bettie Jones, administratrix, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Count 1: "Plaintiff claims of the defendant $20,000 damages for that on the 23d day of July defendant was operating a certain car by means of electricity upon a railway in Birmingham, Ala.; that when said car was at a point upon said railway where same was on grade with a certain street, to wit, Twenty-Second street, at or near its intersection with Avenue D, in said city, said car ran upon or against plaintiff's intestate, Harry Lee Jones, who was under 14 years of age, to wit, of 9 years of age, and so injured him that he died. Plaintiff alleges that said car ran upon or against her said intestate, and that he died as aforesaid, by reason of and as a proximate consequence of the negligence of the defendant in or about the management of said car." Count 2: "Plaintiff refers to and adopts all the words and figures of the first count, from the beginning thereof to and including the words 'that he died,' where they first occur together in said count. Plaintiff adds thereto the following words of averment: Defendant, through it agents upon said car, wantonly or intentionally caused or allowed said car to run upon or against said intestate as aforesaid and thereby wantonly or intentionally caused the death of plaintiff's said intestate as aforesaid. The defendant interposed several grounds of demurrers to these counts which were overruled, whereupon defendant interposed pleas of the general issue and several counts of contributory negligence, in that he was negligent in the way in which he went upon and conducted himself while on the track of the defendant, and that he negligently went upon and remained on the street railway track of the defendant without stopping or looking or listening for approaching cars upon such track and that he negligently went upon or remained upon defendant's street railway track in front of an approaching car on said track."

Demurrers were sustained to the pleas of contributory negligence as answer to the second count of the complaint. The evidence for the plaintiff tended to show that the plaintiff's intestate was killed by a car on defendant's railway at or near the crossing of Twenty-Third street and Avenue B, in the city of Birmingham, on the date mentioned in the complaint. It further tended to show that he crossed the track about 125 feet in front of the car, walking pretty fast; that after crossing the track his hat blew off and fell right in the middle of the car line. He turned back to get it, and while stooping down to pick it up the car struck him that when he stooped down to pick up the hat the car was then about 10 feet from him. Evidence also tended to show that no whistle was blown and the gong was not rung before it struck him. It is further shown that the car was going at a speed indicating no intention on the part of the motorman to stop it. The evidence for the defendant tended to show that at the time the boy was struck the bell on the car was being rung fast and loud; that the boy came out of an alley diagonally across the track; that the boy was running, and looked back to see how far the car was, and as the car was getting pretty close to where he was the boy increased his speed, as if to try to get across the track before the car got there; that the motorman was ringing the bell and holding onto his brake pretty tightly; that the car was 2 or 2 1/2 feet from the boy when he got on the track; and that the car ran about 35 or 40 feet after it struck him.

The plaintiff requested the following charges, which were given Charge 1: "Under the undisputed evidence in this case, if the jury believe it, plaintiff's intestate was under 14 years of age." Charge 2: "A boy under 14 years of age is prima facie presumed to be too young to be held responsible for lack of care and diligence for his own safety." Charge 3: "Even if the jury should be satisfied from the evidence that plaintiff's intestate was guilty of contributory negligence in subjecting himself to danger of being run upon by the car, yet if the jury are further reasonably satisfied from the evidence that, after the motorman became aware of the danger of plaintiff's intestate, he failed to do all that a reasonably prudent and cautious motorman could and would have done under the same circumstances to save the life of plaintiff's intestate, then such contributory negligence of plaintiff's intestate is not the proximate cause of his death, and the jury cannot find for the defendant under its plea of contributory negligence." Charge 4: "If the jury are reasonably satisfied from the evidence that the defendant's motorman in charge of the car consciously failed, after he became aware of the peril of plaintiff's intestate, to do all in his power with the means at hand known to him to save the life of plaintiff's...