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

• Decision Date: 21 November 1911
• Citation: 56 So. 578,174 Ala. 631
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. FUQUA.
• Court: Alabama Supreme Court

56 So. 578

174 Ala. 631

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

Supreme Court of Alabama

November 21, 1911

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

Action by A. E. Fuqua, as administrator, against the Birmingham Railway, Light & Power Company, for the death of his intestate by being run over or upon by a street car at a public crossing. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 8 was as follows: "Plaintiff claims of the defendant $30,000 as damages, for that heretofore, to wit, on the 10th day of January, 1909, there was in force and effect in the city of Elyton, Jefferson county, Alabama, an ordinance substantially as follows: [Here follows section 8 of an ordinance, set out in hæc verba, preventing cars from being propelled through the streets of said cities at a greater rate than eight miles per hour, and at certain points at a greater rate than two miles per hour.] That on said day defendant was operating a street car propelled by electricity upon a public highway in said city of Elyton, and while plaintiff's intestate, Dallas Campbell, was upon said public highway in said city, said car ran upon or against said plaintiff's intestate and killed him. Plaintiff says that his said intestate's death was proximately caused by a violation of said ordinance by defendant's servant or agent in charge of said car; that is, said servant or agent wrongfully, and in violation of said ordinance, caused or allowed said car, while running through the corporate limits of said Elyton, to run at a greater rate of speed than eight miles per hour."

The demurrers were that it does not show that said ordinance was a valid ordinance, and does not show sufficiently how said ordinance was violated.

The following charges were refused to the defendant: (3) "If you believe from the evidence that plaintiff's intestate was lying down upon defendant's track just before being struck by the car, then I charge you that the motorman did not have to keep a lookout to see whether he would be lying down there." (5) "If you believe from the evidence that plaintiff's intestate was lying down on defendant's track just before being struck by defendant's car, then I charge you that the motorman did not owe plaintiff's intestate any duty to look out to see whether he was lying down on said car track." (6) "I charge you that there would be no violation of the ordinance to run the car more than eight miles per hour at 5 o'clock in the morning, if you believe from the evidence that there was no likelihood of any person or vehicles or stock being on that part of the street, or near that part of the street, at such time." (8) "I charge you gentlemen of the jury, that the defendant's motorman had the right to presume, until it appeared to the contrary, that no one would be lying down on defendant's track, if you believe from the evidence that Dallas Campbell was lying there."

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

Bowman Harsh & Beddow, for appellee.

DOWDELL C.J.

The eighth count of the complaint to which a demurrer was interposed was unobjectionable on the ground assigned. This count set out the ordinance of the city, alleged to have been violated, in hæc verba, and concluded with the averment that the ordinance "was in force and effect" at the time of the alleged injury. This in pleading, where the negligence complained of consisted in the failure to comply with a city ordinance, was sufficient and tantamount to averring that the ordinance was a valid one. In 29 Cyc. p. 568, the principle is stated as follows "Where an injury occurs through the neglect of a party to comply with a city ordinance, such ordinance must be pleaded, although...