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

• Decision Date: 03 February 1910
• Citation: 165 Ala. 475,51 So. 568
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. SELHORST.

51 So. 568

165 Ala. 475

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

Supreme Court of Alabama

February 3, 1910

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

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

The complaint is in the following language:

"(1) Plaintiff claims of the defendant the sum of $5,000 damages, for that heretofore, on, to wit, about the 31st day of October, 1905, the defendant was, among other things, engaged in carrying passengers for hire between Birmingham and Powderly, and intervening points; that on or about said day the plaintiff, at or about Fourteenth street and First avenue, at a place where the cars of the defendant stop to take on and let off passengers, the plaintiff, for the purpose of becoming a passenger on one of defendant's cars, attempted to board said car. He avers that as he was in the act of getting on said car, and was on one of the steps of the same going into said car the defendant, its agent, servant, or employé in charge of said car negligently caused the same to jerk or lurch, and caused plaintiff to be violently thrown to the ground; that as a result of said negligence he was thrown to the ground and [here follows a list of the injuries and special damages], all as a proximate result of said negligence, and to his damage in said sum.

"(A) Plaintiff claims of the defendant the further sum of $5,000 damages, in this: That on or about the 31st day of October 1905, the defendant was operating street cars between Birmingham and West End, Alabama, as a common carrier of passengers for reward. [ Here follow the same allegations as in count 1 as to damages and injuries, alleged to have been caused while plaintiff was a passenger by being thrown to the ground.] And plaintiff avers that his said injuries were proximately caused by the wantonness of the defendant's conductor, who had charge of the operation and running of said car, and while acting within the line and scope of his employment by the defendant; that said wantonness consisted in this: That said conductor, knowing the plaintiff was in the act of taking passage on said car, and while the same was stopped, and knowing that to cause said car to start forward would likely injure the plaintiff, yet the said conductor wantonly caused said car to start forward, and wantonly inflicted on said plaintiff his injuries as aforesaid."

(D) Same as A, except that it is averred that the injuries to plaintiff were caused proximately by the defendant's agents or servants while acting within the line and scope of their employment in the negligent manner in which they ran and operated said car.

Demurrers to count 1 were as follows: "(1) Vague, uncertain, and indefinite. (2) It is not sufficiently certain what duty defendant owed to the plaintiff. (3) It is not sufficiently certain wherein or how the defendant violated any duty which it owed to plaintiff. (4) It does not appear that said car had stopped, if in fact it had stopped, at said time and place for the purpose of allowing the plaintiff to take passage thereon. (5) It does not appear therefrom that the servant or employé of defendant in charge of said car knew or could have known by the exercise of due care, that plaintiff was in the act of boarding said car at the time when it was alleged that said car was started forward. (6) For aught that appears, plaintiff attempted to board the car while in motion. (7) It does not appear that the agent, servant, or employé was acting in the line and scope of his employment."

To count A: Because it does not sufficiently charge wanton misconduct as the proximate cause of plaintiff's injury, and does not allege that plaintiff was in a position of peril when the car started, and because it is repugnant, in charging wantonness and simple negligence in the same count, and does not show that the negligent and wrongful conduct complained of was the proximate cause of plaintiff's injury, together with all the grounds of demurrer interposed to count 1.

To count D: All the grounds interposed to count 1, and the further ground that the negligence is not set out with sufficient certainty, and that said count does not sufficiently allege whether plaintiff was boarding or alighting from the car, or riding in it.

The following pleas, among others, were filed by the defendant:

"(4) For further plea, in answer to each count of plaintiff's complaint separately and severally, defendant says that plaintiff himself was guilty of negligence which proximately contributed to

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