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

• Decision Date: 20 December 1906
• Citation: Birmingham Ry., Light & Power Co. v. Wise, 42 So. 821, 149 Ala. 492 (Ala. 1906)
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. WISE.
• Court: Alabama Supreme Court

42 So. 821

149 Ala. 492

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

Supreme Court of Alabama

December 20, 1906

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Mollie Wise against the Birmingham Railway, Light & Power Company.Judgment for plaintiff.Defendant appeals.Reversed and remanded.

This is an action by one offering herself as a passenger of defendant for a failure on part of the defendant to carry her and her minor children from one point upon the line of defendant's street railway to another point on said line.The complaint contained two counts, as follows:

"(1)The plaintiff claims of the defendant five thousand dollars, for that heretofore, to wit, on the 18th day of November, 1903, defendant was a common carrier of passengers for hire and reward from Gate City to Birmingham, in Jefferson county, Alabama, by means of a car operated by electricity upon a railway running from said Gate City to said Birmingham, and plaintiff and her said children were defendant's passengers, and it was the duty of defendant to carry them on said car from said Gate City to said Birmingham, as aforesaid; that on said day plaintiff, with her baby of tender years in her arms and several other children with her, was at said Gate City, at the proper place used by defendant for receiving passengers on said car, for the purpose of boarding said car and being carried by said car as its passenger from said Gate City to said Birmingham; that said car stopped at said Gate City for the purpose of receiving passengers, and while same was stopped as aforesaid some of plaintiff's said children boarded said car, but plaintiff, with her said baby and another or others of said children, did not board said car and as a proximate consequence thereof plaintiff was exposed to the cold and inclement weather for a long time and suffered great mental and physical pain, and great inconvenience, was compelled to wait for a long time without shelter from the cold and inclement weather, and was made sore and sick, and was put to great trouble inconvenience, and expense in or about her efforts to protect herself and her said baby from the cold and inclement weather, and in and about getting to said Birmingham, and in and about her efforts to heal her said sickness and soreness.Plaintiff alleges that she did not board said car, and she suffered said injuries and damages as aforesaid, by reason and as a proximate consequence of the negligence of the defendant's servant or agent in charge or control of the car, in this, viz.: Said servant or agent, while acting within the line and scope of his authority as such, negligently failed to allow plaintiff a reasonable time or opportunity to board said car."

(2) Same as the first down to the words "heal her said sickness and soreness," and adding: "Plaintiff further avers that defendant's servant or agent in control or charge of said car, while acting within the line and scope of his authority as such agent or servant, wantonly or intentionally prevented plaintiff, with her said baby from boarding said car as aforesaid, and thereby wantonly or intentionally caused plaintiff to suffer said injuries and damages."

Demurrers were interposed as follows:

To first count: "Averments are too vague, indefinite, and uncertain.It does not appear therefrom wherein or how the defendant's servant or agent negligently failed to allow plaintiff a reasonable opportunity to board said car.It avers but the conclusions of the pleader.No facts are therein alleged showing wherein the defendant violated any duty owing to plaintiff.For that it does not appear therefrom that plaintiff was a passenger on defendant's car.For that it does not appear that plaintiff had paid her fare as a passenger.For that no facts are therein averred showing that defendant owed plaintiff any duty."To second count: "For that it does not appear therefrom how or in what manner said servant or agent wantonly or intentionally prevented plaintiff from boarding said car.For that no facts are averred therein showing a wanton or intentional injury to plaintiff.For that no facts are therein averred which put defendant on notice as to what acts of misconduct are relied on."

These demurrers being overruled, the defendant pleaded the general issue and the contributory negligence of the defendant in negligently failing to board the car while the same had stopped at said place in the complaint alleged.

Dixie Wise was introduced as a witness, and testified that he was seven years old; did not know when he was seven; did not know "what that meant when I held up my hand and swore to speak the truth a while ago.I know the difference between a lie and the truth.I do not know what you will do with a little boy if he tells a lie.If he dies after telling a lie, I do not know what will become of him.I go to Sunday school when mama will let me.I always tell the truth.Bad boys, when they tell lies, go to the bad man.It would be wrong to tell a lie after you have sworn to tell the truth, and if I were to tell a lie after I had sworn to tell the truth I would go to the bad man."

The charges requested by the defendant and refused by the court are as follows:

Charges 1, 2, and 3 were affirmative charges."(4) The jury are not authorized to find from the evidence that the defendant's conductor wantonly or intentionally started the car from the stopping place at Gate City before the plaintiff and some of her children boarded the car.(5) In considering the question whether or not the jury will award punitive damages on the defendant, the jury may consider the fact, if they find it to be a fact from the evidence, that the defendant's conductor or its other agent who is charged with wantonness or willfulness was not present in court to testify in its behalf.(6) If the jury should find for the plaintiff, they cannot award any damages to plaintiff to compensate her for any sickness the jury believe from the evidence she suffered, and which was...