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

Decision Date10 February 1904
Citation139 Ala. 389,36 So. 736
PartiesBIRMINGHAM RY., LIGHT & POWER CO. v. BYNUM.
CourtAlabama Supreme Court

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

Action by John Bynum against the Birmingham Railway, Light & Power Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The facts of the case and the rulings of the court upon the evidence are sufficiently shown in the opinion. Upon the introduction of all the evidence, the defendant requested the court to give to the jury, among other, the following written charges, and separately excepted to the court's refusal to give each of the several charges requested by it "(4) The court charges the jury that a person intending to take passage on the defendant's car, and for whom the car stopped to allow him to take passage, must enter the car by the usual and customary mode of entering the car and at the place provided for that purpose, and that if he gets upon the car at an unusual place, and attempts to ride by holding on some parts of the car, he is not a passenger, unless some agent of the defendant knew he was riding at such unusual place, or by the exercise of reasonable care ought to have known that he was so riding. (5) If the jury believe from the evidence that the plaintiff was guilty of negligence which proximately contributed, even in the slightest degree, to his injury, they must return a verdict for the defendant." "(10) If the jury believe the evidence, they must find for the defendant." "(15) The court charges the jury that if they believe from the evidence that plaintiff did not board or attempt to board defendant's car by the means and at the place provided for that purpose, and that he got upon the board or bumper at the end of the car without the knowledge or consent or permission of defendant or its agent, and that his position upon the bumper or board was not known to defendant's agent in charge of the car, and that his being at said place contributed proximately to his injury, then he was guilty of negligence which will bar his recovery." There were verdict and judgment for the plaintiff, assessing his damages at $895.82. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Walker Tillman, Campbell & Walker, for appellant.

Saml. Will John, for appellee.

HARALSON J.

Will Patty, a witness for the plaintiff, testified, that he had run on the defendant's road as a conductor and motorman for over three years, up to February, 1901, and that the company were still using the same kind of cars they did when he was on the road. The evidence tended to show, that the accident by which the plaintiff was injured, occurred from two cars becoming uncoupled. The witness had stated fully the coupling apparatus of the cars; the bars used for the purpose, where they were attached to the cars and how; the kind of pin used for the purpose; the drawheads of the cars and the dangers connected with the manner of their coupling. He was asked, when testifying as a witness, "How often in your experience and operation of those cars, did they come uncoupled or break loose on account of this peculiar coupling that you speak about?" The defendant objected to the question, because the evidence called for was incompetent and irrelevant. There was no error in overruling the objection. While he did not see the accident, nor the car on which plaintiff was riding at the time, he did testify, that the company were now using the same cars that were in use when he was on the road, and that he had ridden on one of them just before this trial. In argument, the only ground of irrelevancy insisted on is, that he did not see the coupling in use, at the time of the accident. But that was of little importance, if the evidence tended to show, as it did, that the one in use was the same kind he was familiar with, and had testified about.

2. The main insistence for error is, that the court refused to give the general charge for defendant. This proceeds upon the ground as argued, that the relation of passenger and carrier was not established, in that there was no contract express or implied, upon which such relation existed; that the plaintiff got on the car and rode some 400 feet, and did not see the conductor, nor did the conductor see him, and he had not paid or been called on for his fare, up to the time he was hurt. It was not necessary for plaintiff to have paid his fare, to become a passenger. Hutchinson on Carriers, § 365. The train consisting of two cars, was going into Birmingham, and, as the evidence tended to show, was so crowded, inside the cars as not to admit of others entering them; but still, it continued to stop at each of the street stopping places, and continued to allow others, without any protest or dissent, to get on and stand where they could,--on steps, in the vestibule, and, as with plaintiff and others with him, on the projection outside the vestibule. Under such conditions, it cannot be said that as a matter of law, plaintiff was not a passenger. He had gotten on the car in good faith, with the implied invitation or consent of the company's agent, to take passage with the intention of paying fare, as the proof tends to show, and this was all that was necessary to establish the relation. 23 Am. & Eng. Enc. Law (1st Ed.) 1004; 5 Am. & Eng. Enc. Law (2d Ed.) 492; Hutchinson on Carriers, supra; Cooley on Torts, p. 770; Patterson's Railway Accident Law, § 218; N. B. R. Co. v. Liddicoat, 99 Ala. 549, 13 So. 18.

3. It is contended that the plaintiff, in taking his place where he did...

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18 cases
  • Birmingham Ry., Light & Power Co. v. Moore
    • United States
    • Alabama Supreme Court
    • January 30, 1906
    ... ... There ... was no evidence explanatory of the collision. In the absence ... of such evidence the presumption of negligence arose. G ... P. Ry. Co. v. Love, 91 Ala. 432, 8 So. 714, 24 Am. St ... Rep. 927; Birmingham Ry., Light & Power Co. v ... Bynum, 139 Ala. 389, 36 So. 736 ... The ... extent of the injury suffered by the plaintiff on account of ... the collision was a subject of serious controversy. The ... plaintiff contended that in the collision, among other ... injuries, she received a blow on the lower part of the right ... ...
  • Callaway v. Hart
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 2, 1945
    ...the injury caused by his own acts. 1 Alabama G. S. R. Co. v. Hill, 93 Ala. 514, 520, 9 So. 722, 30 Am.St.Rep. 65; Birmingham Ry., L. & P. Co. v. Bynum, 139 Ala. 389, 36 So. 736. 2 Williams v. Louisville & N. R. Co., 150 Ala. 324, 43 So. 576, 10 L.R.A.,N.S., 413; Central of Georgia Ry. Co. v......
  • Birmingham Ry., Light & Power Co. v. Fox
    • United States
    • Alabama Supreme Court
    • June 29, 1911
    ... ... 191, 34 So. 194; Ala. Mid. R. R. Co. v. Johnson, 123 ... Ala. 197, 26 So. 160; Birmingham v. City Stable Co., ... 119 Ala. 615, 24 So. 558, 72 Am. St. Rep. 955; A. G. S ... R. R. Co. v. McWhorter, 156 Ala. 269, 47 So. 84. The ... case of Birmingham R. R. Co. v. Bynum, 139 Ala. 389, ... 36 So. 736, seems to be opposed to this doctrine or the court ... evidently overlooked the fact that charge 5 in said case did ... not hypothesize the contributory negligence pleaded in ... reversing said case for the refusal of said charge 5, but it ... is unnecessary to ... ...
  • Conway v. Robinson
    • United States
    • Alabama Supreme Court
    • April 28, 1927
    ... ... 532] ... F.D ... McArthur, of Birmingham, for appellant ... Horace ... C. Wilkinson and ... In B.R.L. & P. Co. v. Bynum, 139 Ala. 389, 36 So ... 736, the court held that a ... 657, 56 So. 1013; Atlanta & Birmingham Air Line Ry. Co ... v. Wheeler, 154 Ala. 530, 46 So. 262 ... ...
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