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

• Decision Date: 17 December 1908
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. WILLIAMS.
• Court: Alabama Supreme Court

48 So. 93

158 Ala. 381

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

Supreme Court of Alabama

December 17, 1908

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

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

The facts are sufficiently stated in the opinion of the court. The following charges were requested by defendant, and refused: (1) "If the jury believe the evidence, they cannot find for plaintiff under the first count in the complaint." (2) "The plaintiff is not entitled to recover by reason of the fact, if it be a fact, that the motorman failed to discover the danger of the plaintiff as soon as he might have discerned his danger by the exercise of reasonable care and in the exercise of his duty to keep a lookout. On the other hand, plaintiff is entitled to recover only in the event that the motorman was guilty of negligence in failing to conserve the safety of the plaintiff after he actually became aware of his danger." (3) Affirmative charge as to the second count. (4) "The court charges the jury that plaintiff is guilty of negligence in allowing himself to be or remain in a dangerous proximity to the car which struck him." (5) "If the plaintiff was guilty of negligence which proximately contributed to his injuries in the slightest degree, he cannot recover, although the jury may believe that the defendant is guilty of negligence." (6) "The plaintiff assumed the risk of injury in walking so near the track as to be in danger of passing cars, unless the jury are satisfied reasonably, from all the evidence that the motorman was guilty of negligence in the operation of the car after the motorman actually discovered the peril of the plaintiff." There was judgment in the sum of $500.

Tillman Grubb, Bradley & Morrow, for appellant.

Bowman Harsh & Beddow, for appellee.

DENSON J.

The defendant's (appellant's) car line is constructed longitudinally on what is known as First avenue, a public street in the city of Birmingham. Defendant had the plaintiff, with others of its servants, employed in digging a ditch north of, and parallel with, its tracks in said avenue, between Twenty-First and Twenty-Second streets. At the noon hour of the day on which occurred the accident, the occasion of the injuries complained of, the plaintiff, with the other servants, went to the Twenty-Second street crossing and ate his dinner. After eating, and while all were returning to their work, walking beside the line of defendant's track, one of the defendant's cars, approaching from Twenty-Second towards Twenty-First street, ran against the plaintiff and injured him. Plaintiff testified, among other things, that "we were not on the track, but on the side of the track, where we always go down every day to get dinner. I was walking along there, and the car ran up from behind and struck me. The car did not blow any whistle, or ring any gong, or give any warning. There was no noise on the street by wagons or carriages, and the car was running fast. I could have heard it coming; but it never made any fuss. We did not hear the car coming. I had been working there at that place four days and a half when I got hurt, and during that time cars had been running back and forth. The East Lake car comes down every few minutes." The proof shows that plaintiff was a cripple, one of his legs being a "peg leg," and he was walking, his back toward the car, along by the side of the track, between it and the ditch, and behind the other servants.

The testimony, in respect to the distance from the rails to the ditch, variously placed same at from 3 to 5 feet, and was also in conflict as to whether plaintiff was walking within a safe distance from the track. That offered by the defendant tended to show that plaintiff was walking at a distance from the track safe from harm until the car drew quite near, when he staggered toward the car and within range of it; while plaintiff testified that he never staggered, and was no nearer the track when struck than theretofore. The testimony for the defendant tended to show that the car was going at not exceeding 4 miles an hour; that its rate of speed was "very slow"; that it was a "big" double-truck car, about 28 to 30 feet long; that the motorman noticed the plaintiff ahead of the car about two car lengths, walking between the track and the ditch, and that when the car was within 6 or 7 feet of the plaintiff the motorman commenced ringing the gong; that when the car was within 5 or 6 feet of plaintiff he staggered near enough to the track to be struck, and was struck on his left shoulder by the arm hold on the side of the car; that the car ran 5 or 6 feet after striking plaintiff; that the motorman had been running cars for the defendant four years; that, when he saw plaintiff getting close enough to the track to be struck by the car, he "stamped" his gong and "put on the air in emergency to stop"; that that was the only way to stop a car, "unless you reverse it," and that that was about as quick as reversing, with the rate of speed at which he was then going. On cross-examination the motorman testified, among other things: "I could have reversed the car and put on the air; but, as the fellow says, I did not have time to do it--not hardly time."

The foregoing is a substantial statement of the testimony in the case necessary, in our opinion, to a correct determination of the legal points presented by the assignment of errors. The only errors assigned relate to charges requested by the defendant and refused by the court.

The first of the refused charges is in this language: "If the jury believe the evidence they cannot find for the plaintiff under the first count of the complaint." The...