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

• Court: Alabama Supreme Court
• Writing for the Court: MAYFIELD, J.
• Citation: Birmingham Ry., Light & Power Co. v. Girod, 164 Ala. 10, 51 So. 242 (Ala. 1909)
• Decision Date: 30 June 1909
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. GIROD.

51 So. 242

164 Ala. 10

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

Supreme Court of Alabama

June 30, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by L. N. Girod against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The allegations of damage in the complaint are as follows "She was caused to fall with great force and violence and thereby received internal and external injuries to her body, and was greatly shaken up, and her nervous system greatly shattered and impaired, and she was for a long time wholly confined to her bed, was permanently injured, and plaintiff was put to great expense for medicine, medical care, and treatment, in and about his efforts to heal and cure the wounds and injuries of his said wife, and was deprived of and lost the services and society of his said wife, and suffered great mental and physical pain." The evidence for the plaintiff tended to show that he had to send his wife to Hopkinsville, Ky., for treatment, and pay her railroad fare there and back. The other evidence sufficiently appears in the opinion of the court.

The second plea was as follows: "Defendant, for answer to each count of the complaint separately and severally, says that the plaintiff's wife was herself guilty of negligence which proximately contributed to her injuries, in that she rode on the platform of defendant's car while it was in motion, in violation of a rule of the defendant published in the car in which the plaintiff was riding as a passenger at the time of her injury in such a way that the plaintiff by exercise of reasonable care have seen before riding on the platform." The demurrers were: "The plea fails sufficiently to set forth the negligence of the wife. It fails to show that plaintiff's wife knew of the alleged rule. The alleged rule is not set forth with sufficient certainty. The negligence averred is a conclusion." The other pleas are sufficiently set forth in the opinion.

The following charges were refused to the defendant: (1) "If the jury believe from the evidence that the plaintiff's wife voluntarily stepped from defendant's car while it was moving, and before it had reached its regular stopping place, of which facts she was aware, and if the jury further believe that when she so stepped from the car it was dark and she had a can in one hand and a package in the other then plaintiff's wife was guilty of negligence." (2) "If the jury believe from the evidence that plaintiff's wife voluntarily stepped from defendant's car in the dark, and while it was moving, and before it had reached its regular stopping place to discharge passengers, and that she had a can in one hand and a package in the other, plaintiff's wife was guilty of contributory negligence." (18) "If the jury believe from the evidence that plaintiff's wife consciously and purposely stepped from the car she was riding on in the dark, and while it was moving, and that this proximately contributed to her injury, the jury must find for the defendant." (20) "If the jury believe from the evidence that the plaintiff's wife voluntarily, and while incumbered with a can and in the dark, stepped from defendant's car while it was in motion, and that her doing so proximately contributed to her injuries, the jury must find for the defendant." (10) "If the jury believe from the evidence that the plaintiff's wife, at the time of the accident, was on the platform of defendant's car while it was moving, with a can in one hand and a package in the other, and without holding or supporting herself with either hand, the jury must find that she was guilty of negligence." (15) "It was not the duty of the conductor to know before increasing the speed of the car that the plaintiff's wife was not in a position of peril from such increase of speed, if at the time the speed had increased the car had not reached its regular stopping place for the discharge of passengers." (16) "The calling of the name of the station in the car by the conductor would not be an invitation to plaintiff's wife to alight until the car had come to a stop after the name of the station was called." (19) "If the jury believe from the evidence that the conductor called the name of the station as the car approached it, still the plaintiff's wife would not have been justified therefrom in alighting from the car while it was in motion, and before it had reached its regular stopping place for discharging passengers." (21) "If the jury believe from the evidence that the defendant's car had not reached the usual place for discharging passengers when plaintiff's wife tried to get off the car, and if the jury further believe from the evidence that the crew of the car did not know that she intended to alight before reaching the usual stopping place until after the accident, the jury must find for the defendant."

Charges 6, 7, 8, and 9 assert that plaintiff cannot be awarded any damages for the amount of money paid as nurse's wages, or the amount paid Dr. Wynne, or for loss of his wife's services in cooking, or for any injury to his wife's voice. Charges 11, 12, and 13 assert that no damages can be awarded plaintiff for the amounts paid Drs. Copeland or Heacock or Brown. Charge 14 asserts that he cannot recover for any money expended for clothing, shoes, and medicine for his wife's nurse during her sickness. Charge 17 asserts that the jury cannot award plaintiff any damages for the shortening of his wife's left leg, or for the injury to her left hip, though the jury may believe from the evidence that such an injury existed.

Motion for new trial was made, based on the ground that the damages are excessive and that the verdict was contrary to the evidence.

Tillman, Grubb, Bradley & Morrow and L. C. Leadbeater, for appellant.

Stallings & Drennen, for appellee.

MAYFIELD J.

This is an action by plaintiff, as a husband, for lost services due to a personal injury received by his wife, while a passenger on defendant's electric car, in being thrown from it, while alighting at her destination, by a sudden starting or increase in speed of the car. The complaint originally consisted of three counts. The third was withdrawn by amendment. Each count charged simple negligence only.

Defendant filed six special pleas of contributory negligence. Demurrer was sustained to the second plea, charging plaintiff's wife with negligence in riding on the platform, in violation of defendant's rule published in the car. The rulings on demurrers to the complaint are not insisted on. The remaining special pleas, demurrers to which were overruled, charged contributory negligence in riding on the platform without properly holding on, and in alighting from the car, in the dark, and incumbered with bundles, while it was in motion.

Plaintiff's evidence tended to show that his wife was a passenger from Birmingham to Ensley on defendant's electric car, and her destination was Nineteenth street and Avenue E. Ensley, which was the terminus of the car line; that when the car approached the terminus the conductor called out "Ensley," or "All out for Ensley," after the car stopped, and she arose from her seat and went to the rear of the car, with other passengers, to alight, and was the last one to alight; that while on the platform, in the act of alighting, with a gallon can of milk in her hand, and not holding on, the car started with a sudden jerk and threw her to the ground; that she heard the conductor ring the bell to start, he being on the inside; that she was first taken to the hotel at Ensley, near the terminus, and thence in an ambulance to her home; that on the way to her home in the ambulance she lost her voice, and had since been unable to speak above a whisper; that her vision was also injuriously affected after the accident; that she remained confined to her bed for months; that her hip was fractured, and she could only walk on crutches up to the time of the trial, and that she had broken ribs; that the plaintiff had employed Dr. W H. Wynne, Dr. B. G. Copeland, Dr. Heacock, and Dr. Manning Brown, of Hopkinsville, Ky., where he had sent his wife for treatment, to treat her, and had also paid doctor's bills to each in amounts testified by him, and had paid nurse's wages and his wife's railroad fare from Birmingham to Hopkinsville, Ky., and return, when she went there for treatment (record, pages 14 and 15); that Dr. Manning Brown had never treated her before the accident; that plaintiff had to hire a cook after the accident, to whom he paid $3 a week and board; that he paid the nurse wages, and also furnished her with shoes, clothing, and medicine as part of her wages, and with board. There was no evidence introduced as to the reasonableness of the amount paid the doctors, nurse, and cook. The evidence is set out in full, except the doctors', and on page 30 of the record is a recital in the bill of exceptions that the testimony of the doctors not set out in extenso related to the plaintiff's wife's condition and...