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

• Decision Date: 01 December 1910
• Citation: 169 Ala. 381,53 So. 915
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. YATES.

53 So. 915

169 Ala. 381

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

Supreme Court of Alabama

December 1, 1910

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

Action by J. P. Yates, pro ami, against the Birmingham Railway Light & Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Count 2 was as follows: "Plaintiff claims of defendant the further sum of $10,000 as damages, for that heretofore, on to wit, the 20th day of July, 1904, the said defendant was operating an electric railway in Jefferson county, Alabama between Birmingham and Owenton, in said county, and was a common carrier of passengers for hire between said points and on the night of said day plaintiff became and was a passenger on a train consisting of two cars operated by defendant on said railroad, and occupied a safe position in a seat in the forward car in said train, and while he was a passenger as aforesaid and occupying a safe position in a seat in said car, the said defendant, by and through its servants or agents, the conductor who was in charge of said train, acting within the general line of his employment, ordered and caused plaintiff to leave the car in which he was riding and go to the rear car of said train. And plaintiff avers that he attempted to obey said order, and went to the rear platform of said car, and, finding there no safe way to reach said car, started to return to the interior of the forward car, and while he was still on said platform, and in the act of returning to the interior of said car, the defendant, by and through its servants or agents in charge of said train, negligently and suddenly increased the speed of said train, or caused the same to make a sudden and severe jerk or motion, and as a proximate consequence thereof plaintiff was thrown from said train to the ground, and his left arm was thereby broken. [ Here follows catalogue of the injuries.]"

The following is plea 7: "Plaintiff was himself guilty of negligence, which proximately contributed to his injury, in this: He negligently left a place of safety in said car without any necessity therefor, and negligently walked to the back platform of said car, while the car was moving so rapidly as to make the undertaking highly and obviously dangerous to a man of ordinary prudence, and when it was manifest that the attempt would probably cause him to fall upon said car and receive serious personal injuries, all of which plaintiff knew, and as a proximate consequence of said attempt plaintiff did fall from said car and was injured."

Charge 8 is set out in the opinion. Charges 6 and 7 are as follows: (6) "If you believe from the evidence that the conductor told the plaintiff to take a seat in the rear car, but that plaintiff was not told or required to do so until the undertaking would be free from danger, then I charge you that the conductor had the right to presume, in the absence of notice to the contrary, that the plaintiff would not attempt to do so, if that attempt at the time was manifestly dangerous to a man of ordinary prudence." (7) "I charge you that if you believe from the evidence that the conductor told the plaintiff to take a seat in the rear car, but did not require the plaintiff to do so immediately, then the conductor had the right to presume, in the absence of notice to the contrary, that the plaintiff would not attempt to do so under circumstances rendering the attempt dangerous, when it could with the conductor's given permission and without inconvenience be done with safety."

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

Hamilton & Crumpton and Jere C. King, for appellee.

MAYFIELD J.

Appellee sued appellant to recover damages for personal injuries sustained through being thrown from one of appellant's electric street cars while he was a passenger thereon. The negligence alleged is in that the conductor ordered plaintiff from a safe place on the car to an unsafe place, and in that while plaintiff was passing from one place to the other or while in...