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

• Decision Date: 14 May 1908
• Citation: 156 Ala. 251,47 So. 138
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. PARKER.
• Court: Alabama Supreme Court

47 So. 138

156 Ala. 251

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

Supreme Court of Alabama

May 14, 1908

Rehearing Denied July 3, 1908.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Ada Parker against the Birmingham Railway, Light & Power Company for injuries sustained in alighting from a car. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed and remanded.

Tillman Grubb, Bradley & Morrow, for appellant.

Bowman Harsh & Beddow, for appellee.

ANDERSON J.

It is not every increase in the speed of a car, or starting of same, whether with or without a jerk, that amounts to negligence. Mobile Light & R. R. Co. v. Bell (Ala.) 45 So. 56. The complaint, in order to charge a breach of duty, should aver that the starting, increase of speed, or jerk was negligently made or caused by the servants of the defendant, else the acts or omission should be such as to amount to negligence from the facts disclosed in the complaint. The first count of the complaint avers that the plaintiff was a passenger, etc., "was waiting to alight, or engaged in or about alighting therefrom, at or near Seventh street, in or near said Birmingham, said car was started or jerked, or the speed thereof suddenly increased and as a proximate consequence plaintiff was thrown," etc. The complaint does not charge a knowledge on the part of defendant's servants, who were handling the car, of the plaintiff's attempt to alight, or of her position on the car, nor any other facts from which negligence could be imputed. There is no averment that plaintiff gave any one notice of her desire or intention to alight at or near Seventh street, or that it was customary for people to alight at that point, regardless of notifying the servants of their intention, or that it was the duty of the car to stop at that point for people to alight, whether notified to do so or not. It might be that the car slowed up just before reaching this street in anticipation of stopping if receiving a warning. It would not, therefore, be negligence to increase the speed if no warning was given, unless the servants knew that some one was attempting to alight. Again, the servants in charge may have received no signal to stop, but may have checked the speed of the car near the street in anticipation of a signal and, having received none, before striking the street crossing, increased the speed in order to avoid a...