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

• Decision Date: 30 November 1911
• Citation: Birmingham Ry., Light & Power Co. v. Camp, 57 So. 50, 2 Ala.App. 649 (Ala. App. 1911)
• Court: Alabama Court of Appeals
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. CAMP.

57 So. 50

2 Ala.App. 649

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

Court of Appeals of Alabama

November 30, 1911

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

Action by Oscar L. Camp against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Tillman Bradley & Morrow and L. C. Leadbeater, for appellant.

Bowman Harsh & Beddow, for appellee.

WALKER, P.J.

We are of opinion that the trial court was in error in giving the general affirmative charge at the request of the plaintiff. The following statement, made in the opinion rendered on the former appeal in this case (Birmingham Railway, L. & P Co. v. Camp, 161 Ala. 456, 49 So. 846), applies to the record now before the court: "The testimony is without conflict that the rear end of the car was the part thereof inflicting the damage, and that by reason, as the plaintiff contended, of the 'overhang' of the rear end as the car passed over the curve. One of the theories asserted by the defendant was that the injury was the result of the backing by the horse of the buggy into the rear end of the car, and not of the unaided (thereby) collision of the car with the vehicle." It cannot be said that this theory adduced by the defendant was without support in any tendency of the evidence. The conclusion that there was a movement of the buggy while the car was passing might have been a legitimate deduction from circumstances disclosed by the evidence, though no eyewitness testified that there was such movement. From the facts, if so found by the jury, that a vehicle drawn by a horse was standing far enough from the track as the front end of a car passed it to be out of the way of danger, and was found nearer the track when the rear end of the car passed, it might be inferred that the vehicle was moved by the horse while the car was passing. The witness Griffith, who stated that he saw the buggy just before it was struck by the car, and where it was just after the accident, testified: "I don't know but what the buggy backed into the car; I did not see when the horse backed into the car." The witness Hardwick who was the motorman, testified that when he pulled the car around the curve the plaintiff's buggy, as it stood between the car track and the sidewalk curbing, "appeared to be perfectly in the clear; my mind was satisfied that it was." Our construction of his statement...