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

• Decision Date: 06 May 1907
• Citation: 43 So. 841,151 Ala. 327
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. MOORE.
• Court: Alabama Supreme Court

43 So. 841

151 Ala. 327

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

Supreme Court of Alabama

May 6, 1907

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

Action by Mary Moore, by her next friend, Jane Griffin, against the Birmingham Railway, Light & Power Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action for damages. The complaint was in the following language "The plaintiff, Mary Moore, a minor, by her next friend Jane Griffin, claims of the defendant, the Birmingham Railway, Light & Power Company, which is a corporation doing business as a common carrier of passengers in the city of Birmingham, state of Alabama, the sum of $5,000 damages upon the following facts: Plaintiff avers that on the 23d day of June, 1903, defendant was a common carrier of passengers engaged in carrying plaintiff as a passenger upon a car operated by defendant upon a street railway in and upon Avenue F, in said city of Birmingham, state of Alabama; and plaintiff avers that, upon said car approaching the intersection of Twenty-Seventh street and Avenue F, she notified the conductor in charge of said car of her intention or desire to alight from said car at said designated intersection. Plaintiff avers that said car came to a full stop at said intersection, and she arose from her seat and started to leave said car by means of the front platform and step thereof; and she says that just as she reached the front step of said car, and before she was enabled, or before she had time, to alight from said car, the defendant or an agent thereof, caused said car to start suddenly and violently forward, and as a direct and proximate result of such starting plaintiff was thrown violently from said car striking the ground at some distance therefrom upon her face and stomach [here follows a long list of injuries, permanent and otherwise], and she was put to great expense and inconvenience in providing the necessary medical attention nursing, and other necessities in her efforts to heal and cure the said wounds and injuries; and plaintiff avers that the damage was caused by the negligence of defendant in starting said car while plaintiff was standing on the step or platform of said car, in attempting to alight therefrom as aforesaid, and that said negligence was the direct proximate, and effective cause of the said injuries and damage to the said plaintiff." Count 2 alleges generally the negligent conduct of the business of the defendant which resulted in the injuries as above set forth, and that the injuries and damages are the proximate result of this negligence.

Demurrers were interposed to the complaint as follows: To the first count: Because it joins in one and the same count an action of trespass with one in case, because the cause of action is improperly set forth, and because the averments of said count are not alleged as facts. To the second count: Because its averments are vague, uncertain, and indefinite, and because it avers but the conclusions of the pleader, and because no facts are therein averred to put the defendant on notice as to what negligence is relied on by the plaintiff. These demurrers were overruled, and issue was joined upon the general issue and two pleas of contributory negligence--the first, that plaintiff negligently alighted from the car; and, second, that plaintiff negligently alighted from the car while it was in motion.

Evidence for the plaintiff tended to support the allegations of the complaint, and the evidence for the defendant tended to show contributory negligence. The evidence objected to sufficiently appears in the opinion.

The defendant requested a number of written charges, the following of which were refused: "(1) If you believe from the evidence in this case that the car was in motion at the time plaintiff alighted or attempted to alight therefrom, you will find a verdict for defendant. (2) The burden of proof in this case is on the plaintiff to reasonably satisfy the jury that the car was not in motion at the time she alighted or attempted to alight therefrom." (3) General affirmative charge, with hypothesis. (4) Affirmative charge as to count 1. (5) Affirmative charge as to count 2. Charge 6 is set out in the opinion. "(7) The burden of proof in this case is on the plaintiff to reasonably satisfy the jury that the car was still when she attempted to alight."

Motion for new trial was made on the ground that the verdict...