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

• Decision Date: 21 July 1904
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. OLDHAM.

37 So. 452

141 Ala. 195

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

Supreme Court of Alabama

July 21, 1904

Appeal from City Court of Birmingham; W. W. Wilkerson, Judge.

Action by John S. Oldham against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Reversed.

This action was brought to recover damages for personal injuries sustained by the plaintiff. The complaint contains eight counts. The first, fourth, fifth, and sixth counts charge the defendant with simple negligence, while the third, seventh and eighth counts charge the defendant with willfulness or wantonness. The defendant pleaded the general issue and several special pleas, setting up contributory negligence of the plaintiff. The court sustained a demurrer to the pleas of contributory negligence in so far as they purported to be an answer to the counts of the complaint charging wantonness and willfulness. The facts of the case are sufficiently stated in the opinion. The defendant requested, among other charges the general affirmative charges in its behalf, and separately excepted to its refusal to give said charges as asked. There were verdict and judgment for plaintiff assessing his damages at $5,000. The defendant appeals, and assigns as error the several rulings of the court to which exceptions were reserved.

Walker Tillman, Campbell & Walker, for appellant.

Banks & Selheimer, for appellee.

SHARPE J.

In this suit recovery is sought for injuries resulting to the plaintiff from his being run against by a street car operated by defendant on Eighth avenue, in the city of Birmingham. Where the accident occurred there were two car tracks about six feet apart running parallel with each other eastward and westward. The cars were moved by electricity. Plaintiff had ridden westward along the north track, and having, in going from Sixteenth to Fifteenth street, passed an east-bound car he, near the west line of Fifteenth street, stepped from the north side of his car, walked around behind it, and, as it was moving away, was about to go upon the south track, when he was struck and injured by a car going eastward on that track. On these lines there were in force at the time of the accident the following rules: "When a car has stopped on double track or a siding to let passengers on or off, cars approaching in the opposite direction must stop. Passengers are liable to get off the car and walk across the other track in front of car approaching in opposite direction." "Ring the alarm bell approaching and going around curves and before crossing street, and to signal wagons and other vehicles to clear the track." Respecting plaintiff's conduct on that occasion, the evidence is undisputed, and, as appearing from his own testimony, it shows that plaintiff did not, after alighting from his car, make any effort by looking, listening, or otherwise to ascertain whether he could go upon the south track with safety. In testifying he said, among other things: "I paid no attention to whether a car was coming from the direction of my right or not. I did not look to the right or left either. I didn't know how the cars moved on those tracks. I wasn't acquainted with the cars. I hadn't paid any attention to whether cars moving on parallel tracks went away to...