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

• Decision Date: 29 November 1904
• Citation: 37 So. 635,141 Ala. 606
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. HINTON.
• Court: Alabama Supreme Court

37 So. 635

141 Ala. 606

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

Supreme Court of Alabama

November 29, 1904

Appeal from City Court of Bessemer; B. C. Jones, Judge.

Action for personal injuries by C. W. H. Hinton against the Birmingham Railway, Light & Power Company. Plaintiff had judgment, from which, and an order denying a new trial defendant appeals. Affirmed.

This was an action brought by the appellee, C. W. H. Hinton, by his next friend, against the Birmingham Railway, Light &amp Power Company. The complaint contained two counts. The first count was in words and figures as follows: "(1) The plaintiff, Clyde W. H. Hinton, suing by his next friend, Mary F. Hinton, claims of the defendant, Birmingham Railway, Light & Power Company, a corporation, the sum of three thousand dollars as damages, for this: that heretofore, to wit, on the 3d day of January, 1902, the plaintiff was living with his father and mother, Walter L. and Mary F. Hinton, in that certain dwelling house situated near the defendant's railroad extending and running from the city of Bessemer to the city of Birmingham, in Jefferson county, and state of Alabama, a short distance west or southwest of what is known as 'Wilkes Station,' on said railroad, and that the defendant negligently caused the destruction by fire of said dwelling house while the plaintiff was so occupying and living in the same; so that the plaintiff while getting out of said house and escaping from said fire was greatly burned so that his hands, forehead, and one of his ears were greatly lacerated and wounded, and he was thereby caused and made to suffer with great mental and physical pain and agony, and made sore, sick, and was otherwise injured and was made very nervous, and has been permanently injured, and his suffering continued for a long time after he received his said injuries, to wit, for a month; wherefore plaintiff sues and claims damages as aforesaid." The second count was in words and figures as follows: "(2) Plaintiff further claims of the defendant the sum of three thousand dollars as damages for this: that heretofore, to wit, on the 3d day of January, 1902, the plaintiff, with his father and mother and other members of the family, was living in that certain dwelling house situated near the line of the defendant's railroad known as the Bessemer & Birmingham Dummy Line, or Railroad, which runs or extends from the city of Bessemer to the city of Birmingham, in Jefferson county, and state of Alabama, a short distance west or southwest of what is known as Wilkes Crossing or Station on said railroad or dummy line that on said date said dwelling house was burned up and destroyed by fire; and that while said house was so being consumed, the plaintiff, while in and about escaping from said house so on fire, was greatly burned, so that his hands forehead, and one of his ears were greatly lacerated and wounded, and he was thereby caused and made to suffer with great mental and physical pain and agony, and was made sore sick, and was otherwise injured, and was made very nervous, and has been permanently injured, and his suffering continued for a long time after his said injuries were so received, to wit, a month. And plaintiff avers that said fire was caused and set out by sparks and fire emitted from one of the defendant's engines, which was attached to a car or a train of cars and being operated and run by the defendant upon and over its said railroad." The averments to the second count were then followed by the averments of negligence which are copied in the opinion. The defendant demurred to the first and second counts separately upon the following grounds: "(1) For that it is not alleged that the injuries to the plaintiff were proximately caused by negligence of the defendant; (2) for that the facts which constitute the alleged negligence of the defendant are not sufficiently averred in said count of the complaint; (3) for that the allegations of said count of said complaint do not present a cause of action against the defendant; (4) for that it is not averred or shown that the plaintiff was reasonably diligent in his efforts to escape from the alleged burning building." Each of the demurrers to each of the counts was overruled. The cause was tried upon issue joined upon plea of the general issue. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) I charge you, gentlemen of the jury, if you believe the evidence, you must render your verdict in favor of the defendant. (2) I charge you that you cannot find for the plaintiff under the first count of the complaint. (3) I charge you, gentlemen of the jury, that you cannot find for the plaintiff under the second count of the complaint. (4) I charge you, gentlemen of the jury, that the burden is upon the plaintiff to reasonably satisfy the conscience of each...