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

• Decision Date: 30 June 1908
• Citation: Birmingham Ry., Light & Power Co. v. Harden, 47 So. 327, 156 Ala. 244 (Ala. 1908)
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. HARDEN.
• Court: Alabama Supreme Court

47 So. 327

156 Ala. 244

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

Supreme Court of Alabama

June 30, 1908

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

Action by Harvey Harden against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff and defendant appeals. Reversed and remanded.

The complaint was as follows: "Plaintiff claims of defendant corporation $10,000 damages, for this, to wit: On or about July 26, 1903, plaintiff was a passenger on an electric car operated by the defendant, a corporation for the public carriage of passengers; that plaintiff was in the act of alighting from one of the passenger cars operated by the defendant at a point where said car was stopped for passengers to alight [naming the place], when the servants and agents of defendant in charge of the car negligently permitted or caused said car to suddenly start or jerk, and as a proximate consequence of said negligence plaintiff was thrown down on the ground, etc. [ Here follows the allegation of special damages suffered.] * * * (3) Plaintiff claims of defendant $10,000 damages, for that heretofore, on, to wit July 26, 1907, plaintiff was received by defendant as a passenger on one of the cars operated by defendant for the public carriage of passengers, and while plaintiff was such passenger the defendant's agents or servants negligently caused or allowed the said car to suddenly start or jerk thereby throwing plaintiff to the ground, injuring him," etc.

Demurrers were interposed to the first count as follows: "It does not appear therefrom that said car was stopped for the purpose of allowing plaintiff or other passengers to alight therefrom at the time plaintiff was in the act of alighting therefrom. (5) For aught that appears therefrom, plaintiff was in the act of alighting from said car while same was in motion, and at a place where it was not intended that passengers should alight from said car. The facts averred therein do not show that it was negligence to permit said car to suddenly start or jerk. It does not appear therefrom that the agents or servants of defendant were then and there acting within the line and scope of their employment." The same grounds were assigned to count 3. The pleas were the general issue and contributory negligence in negligently alighting or attempting to alight from the said car while the same was in motion.

The following charges were refused to the defendant: "(1) If the jury believe the evidence in this case, they cannot find from it that the witness Forshee was guilty of negligence." (2) Affirmative charge. "(3) If the jury believe from the evidence that plaintiff was injured while getting off defendant's car while it was moving that he stepped off it at right angles and straight out from the car, and that his doing so proximately contributed to his injury, the jury must find for the defendant. (4) If the jury believe from the evidence that plaintiff was injured in alighting from defendant's car after it had started from its usual stopping place to take on and let off passengers and while it was moving, the jury must find for defendant. (5) If the jury find for plaintiff, they are not authorized from the evidence to award him more than nominal damages to compensate him for any loss of earning capacity which the jury may believe from the evidence was a proximate result of the injury. (6) If the jury believe from the evidence that plaintiff was injured in alighting from defendant's car after it had started from the usual stopping place to take on and let off passengers, and while it was moving, and that there was no sudden or unusual jerk at the time he was alighting, the jury must find for defendant. (7) If the jury believe from the evidence that the plaintiff got off the car at a place where it was not usual for it to receive or discharge passengers, and while the car was moving, then defendant would not be liable to plaintiff for the running of its car with a sudden or unusual jerk at such place. (8) If the jury believe from the evidence that plaintiff got off the car at a place where it was not usual to take on and discharge passengers, then it is not negligence by which plaintiff can complain in this action for the defendant's conductor or motorman to cause its...