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

• Decision Date: 09 February 1905
• Citation: 143 Ala. 220,38 So. 1016
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. WILLIS.
• Court: Alabama Supreme Court

38 So. 1016

143 Ala. 220

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

Supreme Court of Alabama

February 9, 1905

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Sallie Willis against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action of damages, based on alleged negligence of the defendant in operating its car, upon which the plaintiff was a passenger, whereby she was injured. The case was tried on pleas of the general issue and contributory negligence by the plaintiff. The plaintiff requested the following written charge, which was given: "(4) It is not necessarily and as a matter of law negligence for a passenger to attempt to get off a slowly moving car." The defendant requested the following written charges, which were refused by the court: "(3) If the jury believe from all the evidence that the car was being slowly moved across Twenty-Sixth street preparatory to being stopped on the west side of Twenty-Sixth street, and that the plaintiff undertook to get off the car while it was so moving across that street, then I charge you that the plaintiff was guilty of contributory negligence. (4) If you believe from all the evidence that the car was being slowly moved across Twenty-Sixth street preparatory to being stopped on the west side of said Twenty-Sixth street, and that Twenty-Sixth street was the plaintiff's destination, and further believe that the plaintiff stepped from the car to the ground while it was being moved across Twenty-Sixth street, I charge you that the plaintiff was guilty of contributory negligence in stepping from the car at that time."

Walker Tillman, Campbell & Morrow, for appellant.

Bowman Harsh & Beddow, for appellee.

TYSON J.

We need only apply what was said with respect to the sufficiency of the first and sixth counts of the complaint in the case of Armstrong v. Montgomery Street Railway Co., 123 Ala 233, 26 So. 349, to see that the first count of this complaint as amended was not subject to the demurrer interposed to it. It is unnecessary to notice assignments of error as to rulings upon the sufficiency of the second count or the pleas interposed to it, since the court charged the jury, at the request of defendant, that there could be no recovery upon it. There was no error committed by the court in giving the fourth charge requested by plaintiff, or in...