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

• Decision Date: 19 December 1907
• Citation: 153 Ala. 192,45 So. 198
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. LANDRUM.
• Court: Alabama Supreme Court

45 So. 198

153 Ala. 192

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

Supreme Court of Alabama

December 19, 1907

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

Personal injury action by Porter Landrum against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

There is no assignment of error calling in question the action of the court on the pleading. The first and third counts are in simple negligence. The second count was in wanton or willful injury. The defense was the general issue and contributory negligence by going upon the track without first stopping looking, and listening for approaching cars. The evidence tended to show that the plaintiff was a minor about 11 years old; that he had ridden on defendant's electric car line from the end of the line to what is known as "Tenth Street" or "Car Barn" station; that he alighted from the car he was on, and crossed behind it, and stepped onto the adjoining track, and was struck by a car on that track running in an opposite direction from the car from which he had alighted; that he had not paid his fare on the car, but had money with which to do it. He had been sent to a drug store, which was at the next stopping place, but got off before arriving at his destination and while the car was slowing up for Tenth Street station, some distance from the usual stopping place. The rate of speed at which the car was running when he got off was in dispute, as was the evidence as to whether the car which struck him gave signals of warning as it approached and passed the car on which plaintiff had been riding. The evidence further tended to show that plaintiff jumped off the rear platform of the car and immediately ran or walked across the track behind the car on which he was riding and onto the track where he was struck by a freight car. It also tended to show that the plaintiff lived on electric car lines, and crossed them daily in going to and from school, and always stopped and looked and listened for the car, or stopped and listened for the car when he could not see it before going on the track. Some of plaintiff's witnesses testified that he traveled on the cars at that time, and that they supposed he was able to take care of himself as any little boy his age, and that he had intelligence to know how to travel by himself on the street car. The mother testified that he was just a common, ordinary boy at the time he got hurt, that he was able to take care of himself on the cars, and that she trusted him to go on the cars by himself. The plaintiff himself testified that he always kept away from cars when they were coming, and that whenever he came to a car track he would look up and down a track to see if one was coming, and if he could not see he would stop and listen; that he walked across the track behind the car, walking slowly, and heard no warning, listening all the time; that he did not stop while he was walking, and could not see on the other track; that there was two or three feet between the tracks, and the cars extended over the tracks some; that he could not see until he had gotten around the edge of the passing car, and was then near about the other track when the freight car hit him at once; that when he got to the side of the car on which he was riding next to the other track he did not look down the track towards Birmingham; that he looked at the track, but did not look either up or down, but that he stopped and listened, because he knew it was dangerous to get on the track if another car was coming. The defendant's evidence tended to show that the plaintiff swung off the car he was riding on when it was about 60 feet from the usual stopping place, and ran behind it onto the track on which the freight car was approaching and was struck by it. The evidence was in conflict as to the speed of this car.

The following charges were refused to the defendant: "(1) If the jury find, from the evidence, that the plaintiff at the time of his injury had sufficient age, judgment, and discretion to know and appreciate the danger of going on defendant's track without stopping and looking for the approach of cars thereon, the jury cannot find for the plaintiff under the third count of the complaint. (2) If the jury find, from the evidence, that the plaintiff had sufficient age, discretion, and judgment to know and appreciate the danger of going upon the track of defendant without stopping, looking, and listening for approaching car and if the jury further find, from the evidence, that defendant's freight trip was running at not exceeding half its usual speed between stations as it passed the passenger car, then the jury must find for the defendant. (3) If the jury believe, from the evidence, that the plaintiff at the time he was struck by the car of defendant had ceased to be a passenger of defendant, then the just must find that the plaintiff was not entitled to an observance of the custom of the defendant's employés to give warning of the car approaching another standing car on the adjoining track, or to reduce its speed or stop opposite it. (4) The plaintiff if the jury find that at the time he was hurt he was capable of being guilty of negligence, would not be excused from stopping, looking, and listening before going on defendant's track for cars on it, by reason of the existence of a custom on the part of defendant's employés to give signals of warning when approaching and passing moving cars on the adjoining tracks. (5) If the jury believe from the evidence, that at the time of the injury to the plaintiff the plaintiff had sufficient age, judgment, and discretion to know and appreciate the danger of going upon defendant's railroad track without stopping and looking and listening for the approach of cars thereon, the jury must find for defendant. (6) If the jury believe the evidence they must find from it that plaintiff was guilty of negligence which proximately contributed to his injuries. (7) The law imposes no duty on the motorman on defendant's freight trip in the matter of giving signal, except when the freight trip was passing or about to pass another car of defendant. (8) If the jury believe the evidence, they must find from it that the plaintiff at the time of his injury had sufficient age, judgment, and discretion to know and appreciate the danger of going upon defendant's track without stopping, looking, or listening for approaching cars. (9) Unless the jury find, from the evidence, that it was the custom and practice on defendant's railroad, at the time plaintiff was hurt, for its motorman to give signals of warning and to reduce speed or stop when approaching or passing cars on the adjoining track, which was standing or moving along it, the jury must find for the defendant. (10) If the jury find, from the evidence, that plaintiff got off the passenger car before it reached the station at Tenth street, or the car barn, and while the car was in motion, the jury must find for the defendant. (11) If the jury believe, from the evidence, that the plaintiff got off defendant's car before it reached the regular stopping place, and if the jury find, from the evidence, that the custom or practice to give signals of warning when passing a standing car, and to reduce speed or stop opposite the standing car, existed at the time plaintiff was hurt, and was for the benefit altogether of passengers alighting from the standing car, and if the jury further find, from the evidence, that the plaintiff got off the car at such point to save himself from paying fare, then the plaintiff is not entitled to complain of the violation of such practice or custom, if the jury find, from the evidence, it was...