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

• Decision Date: 30 May 1906
• Citation: 148 Ala. 69,41 So. 616
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. RYAN.

41 So. 616

148 Ala. 69

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

Supreme Court of Alabama

May 30, 1906

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

"To be officially reported."

Action by D. O. Ryan, as administrator of Conrad Richwein, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action by the administrator of Conrad Richwein, suing to recover damages for the negligent killing of the intestate by appellant. The complaint contained but two counts. Count 1 was in the following language: "Plaintiff claims of the defendant $25,000 as damages, for that heretofore, to wit, on the 21st day of September, 1901, the defendant was operating a street car by electricity upon a railway upon and on grade with a public highway in the city of Birmingham, Ala., to wit, upon First avenue at or near its intersection with Twentieth street, in said city, and on said day defendant's servant or agent in charge of or control of said car, acting within the line and scope of his employment as such servant or agent, so negligently conducted himself that as a proximate consequence thereof said car ran upon or against said intestate upon said highway at or near its intersection with Twentieth street, in said city, and so injured him that he died." Count 2 contained the same allegations of negligence, but alleged that these injuries were wantonly, willfully, or intentionally inflicted.

The demurrers appear in the opinion. The defendant filed pleas 1 2, and 3, which are the general issue, and special pleas 4 and 5, alleging contributory negligence, in that deceased stepped on the track immediately in front of a moving train of cars and as a proximate consequence sustained the injuries complained of, and that he negligently attempted to board a moving car. Afterwards defendant filed the sixth plea "For a further answer to the first count of the complaint, defendant says that plaintiff's intestate was guilty of negligence which proximately contributed to his injury and death, in this: that he negligently went upon or in close proximity to the defendant's said track without stopping or looking or listening."

The evidence for the plaintiff tended to show that the plaintiff was struck as he was crossing First avenue between Twentieth and Twenty-First street; that the car was running about 10 miles an hour; that plaintiff's intestate was almost across the track when the motorman hallooed, "Look out!" when intestate turned his face toward the car and was struck. There were two cars in the train, and they ran the distance of both cars after striking him. The evidence tended to show for plaintiff that the motorman did not ring the gong or try to stop the car until after it struck plaintiff's intestate. The evidence for defendant tended to show that the bell was ringing as the car approached, when defendant stepped up to the car and tried to board it with a bundle in his hand. He stepped almost in front of the car. And other evidence tended to show that the plaintiff's intestate attempted to cross the track immediately in front of the moving car, and other evidence tended to show that the motorman did all he could to stop the car after discovering the danger.

The plaintiff asked the following written charges, which were given: "(1) Whether a motorman was guilty of negligence or not depends upon whether he acted as a reasonably prudent and careful motorman would have done under the same cirucmstances. (2) If a motorman should, by reason of excitement or otherwise, do something or fail to do something which an ordinarily cautious and prudent motorman would not have done or failed to do under the same circumstances, then the doing or failing to do that thing would be negligence. (3) Even though the jury should believe from the evidence that Conrad Richwein did go on the track so near the car as that the motorman could not stop in time to avoid knocking him down, yet if the jury are reasonably satisfied from the evidence that after the motorman became aware of his peril the motorman, by the diligent and careful use of all the means at command, could have avoided the death of Richwein then the act of Richwein in going or being on the track in front of the cars would not be the proximate cause of the death, and the plaintiff would be entitled to a verdict under the first count, or simple negligence count, if the jury are reasonably satisfied from the evidence that said first count is true. (4) Even if Richwein was guilty of negligence which proximately helped to cause his own death, then plaintiff would be entitled to a verdict if the jury are reasonably satisfied from the evidence that the second count is true. To prove the second count, it is not necessary to prove that the motorman had any actual intent to injure Richwein or anybody else. (5) It is not necessary to a recovery by plaintiff under either the first or the second count of the complaint that the motorman should have had any actual desire to injure Conrad Richwein or any one else. (6) If the jury are reasonably satisfied from the evidence that the first count of plaintiff's complaint is true, which count charges simple negligence only, then plaintiff's case is made out, and the verdict of the jury must be for the plaintiff unless the jury are reasonably satisfied from the evidence that Richwein was himself guilty of negligence which proximately contributed to his death. (7) The mere fact, if it be a fact, that Conrad Richwein was guilty of negligence in going or being on the track in close proximity to an approaching car would not necessarily as a matter of law be the proximate cause of his death; but the question as to what was the cause of his death is for the jury."

The following charges were requested by the defendant, and refused by the court: "(1) If you believe from the evidence that, as soon as Richwein got upon the track in front of the car, the motorman did all he could to stop the train or car, you must find for the...