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

• Decision Date: 15 June 1911
• Citation: 173 Ala. 623,55 So. 995
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. FISHER.
• Court: Alabama Supreme Court

55 So. 995

173 Ala. 623

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

Supreme Court of Alabama

June 15, 1911

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Mrs. Ora M. Fisher against the Birmingham Railway, Light &amp Power Company for damages for injury to her while a passenger. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint was as follows: Count 1: "Plaintiff claims of defendant $10,000 as damage, for that heretofore, to wit, on the 18th day of November, 1909, defendant was a common carrier of passengers by means of a car operated by electricity upon a railway known as the 'East Lake Line,' in Jefferson county, Alabama; that on said day plaintiff was defendant's passenger on said car, and the defendant so negligently conducted itself in or about carrying plaintiff as defendant's passenger on such car that while plaintiff was defendant's passenger on said car, and said car was at a point on said line, to wit, at or near Forty-Seventh street, plaintiff was struck by an object to wit, a gate on said car, and was thrown or caused to fall and was cut, bruised, shocked, and otherwise injured in her person. [ Here follows the catalogue of her injuries.]" Count 2: "The plaintiff claims of defendant $10,000 damages, for that heretofore, on, to wit, the 18th day of November, 1909, defendant was a common carrier of passengers by means of a car operated by electricity upon a railway known as the 'East Lake Line,' in Jefferson county Alabama; that on said day, while plaintiff was defendant's passenger on said car, defendant's servant or agent in charge or control of said car, acting within the line and scope of his authority as such, wantonly or intentionally caused plaintiff to be injured in her person while on said car, and while said car was at a point on said line, to wit, at or near Forty-Seventh street, and to suffer the injuries and damage set out in the first count of the complaint." Count 3: "Plaintiff claims of defendant $10,000 as damages, for that heretofore, to wit, on the 18th day of November, 1909, defendant was a common carrier of passengers by means of a car operated by electricity upon a railway known as the 'East Lake Line,' in Jefferson county, Alabama; that on said day plaintiff was defendant's passenger on said car, and the defendant so negligently conducted itself in or about carrying plaintiff as defendant's passenger on said car that, while plaintiff was defendant's passenger on said car and said car was at a point on said line, to wit, at or near Forty-Seventh street, plaintiff was thrown or caused to fall, and suffered the injuries and damage set out in the first count of the complaint, wherefore she sues."

The demurrers are that the counts are vague, uncertain, and indefinite; that it does not appear with sufficient certainty what duty the defendant owed the plaintiff; it does not appear how the duty was violated, or that any duty was violated; said counts are repugnant and inconsistent; the facts averred do not constitute actual negligence; the negligence averred is merely the conclusion of the pleader, and it does not appear that the negligence complained of was the proximate cause of the injury.

The following is a question propounded to Dr. Alley: "If the lady hadn't had that pain before, and on or about the 18th of November, 1909, that is, prior to the time you saw her, she had been struck in the face with a car gate and knocked backward, and then, being out on the platform of the car, the car was started and knocked or threw her against the car, and she was dazed from that, and she wasn't off the car, or got off the car, and in a little while went to a house near by and was put to bed, and that day went home and remained in bed for some time, and at the time she was hurt, or from the time she was hurt, continued to suffer that pain in her spine, and had not suffered it before, what, in your judgment, would be the cause of that pain and that condition of the spine?"

Tillman Bradley & Morrow and C. P. Rice, for appellant.

Bowman Harsh & Beddow, for ap...