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

• Decision Date: 21 November 1904
• Parties: BIRMINGHAM RY. LIGHT & POWER CO. v. BRANTLEY. [a1]
• Court: Alabama Supreme Court

37 So. 698

141 Ala. 614

BIRMINGHAM RY. LIGHT & POWER CO. v. BRANTLEY. ^[a1]

Supreme Court of Alabama

November 21, 1904

Appeal from Circuit Court, Jefferson County; Osceola Kyle, Judge.

Action by Fannie Brantley against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff for $2,000 defendant appeals. Affirmed.

The complaint contained four counts. The first and fourth counts charged simple negligence. The second count charged that the injuries complained of were inflicted upon the plaintiff "by the wanton, willful, or intentional negligence of the defendant in the running and operation of its said car at the time and place of the occurrence of said injuries." The third count charged that "the defendant wantonly willfully, or intentionally ran its car or cars against said wagon wheel, and threw the said wagon over with the plaintiff," inflicting the injuries complained of. For answer to the complaint the defendant pleaded the general issue, and by special plea set up the contributory negligence of the defendant. The facts of the case are sufficiently stated in the opinion.

The court, at the request of the plaintiff, gave to the jury the following written charges:

"(1) The court charges the jury all that is meant by wanton or willful or intentional negligence is the conscious failure on the part of the motorman to use reasonable care to avoid the injury after discovering the danger to the wagon, if the jury believe from the evidence that there was such failure and the injury resulted therefrom; and in such case any negligence on the part of the plaintiff, whether it contributed to the injury or not, is not a defense or excuse to the defendant for injuring the plaintiff.

"(2) Although the plaintiff may have been guilty of negligence in allowing the wheel of the wagon to be on the track or near the track, yet this negligence will not defeat the plaintiff's right to recover, if the motorman actually saw, or by keeping a constant and vigilant lookout could have seen, the exposed condition of danger of the wagon or of the plaintiff in time to have avoided the injury by the exercise of reasonable care, and negligently failed to exercise such reasonable care; and if the jury are reasonably satisfied from the evidence that such negligent failure of the motorman was the proximate cause of the injury to the plaintiff, then the defendant is liable, and the verdict of the jury should be for the plaintiff.

"(3) It was the duty of the motorman to keep a constant and vigilant lookout for persons and things on the track; and if the jury are reasonably satisfied from the evidence that the motorman, by keeping such constant and vigilant lookout, could have seen the exposed condition of danger of the wagon on or near the track, or of the plaintiff, in time to have avoided injuring the plaintiff by the exercise of reasonable care, then the law charges the motorman with seeing the exposed condition of the wagon or of the plaintiff within the time stated above in this charge, whether he saw them or not.

"(4) Although the plaintiff may have been guilty of negligence in exposing herself to injury by allowing the wagon wheel or any part of the wagon to remain on or near the track, yet such negligence will not defeat her right to recover, if the motorman saw the exposed condition of danger of the wagon or of the plaintiff in time to have avoided the injury by the exercise of reasonable care and by the use of all means at his command, and negligently failed to exercise such reasonable care; and if the jury are reasonably satisfied from the evidence that such negligent failure of the motorman was the proximate cause of the injury to the plaintiff, then the defendant is liable, and the verdict should be for the plaintiff.

"(5) If the jury should be reasonably satisfied from the evidence the plaintiff was guilty of negligence in allowing the wagon wheel or wagon to be on or so near to the track as to expose it to danger by the running of the car, yet such negligence would not be considered as contributory negligence to the injury, if the jury believe from the evidence to their reasonable satisfaction that the motorman saw the exposed condition of the wagon to danger on or near the track in time to avoid the injury by reducing the rate of speed in time so as to so control it and avoid the injury, or stop the car, if necessary, to prevent the injury, and the motorman negligently failed to give such warning and reduce the speed or stop said car, and failed to use all means at his command to avoid the injury, this negligence of the motorman was the proximate cause of the injury to the plaintiff."

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