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

• Decision Date: 11 January 1910
• Citation: 164 Ala. 111,51 So. 424
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. MOSELEY.
• Court: Alabama Supreme Court

51 So. 424

164 Ala. 111

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

Supreme Court of Alabama

January 11, 1910

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

Action by Charles A. Moseley, administrator of Charles S. Moseley deceased, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

All the counts of the complaint were stricken, except the fifth and seventh. The seventh count is sufficiently set out in the opinion. The fifth count was as follows: "Plaintiff Charles A. Moseley, as administrator of the estate of Thomas S. Moseley, deceased, claims of the defendant, Birmingham Railway, Light & Power Company, a corporation, $30,000 as damages, for that heretofore, on, to wit, the 29th day of December, 1906, defendant was a common carrier of passengers for hire by means of street railway cars propelled by electricity in Jefferson county, Alabama, and on said date plaintiff's intestate, Thomas S. Moseley, was in the employment of defendant as a motorman upon one of its said street railway cars, and while on said car and in the service and employment of defendant, and engaged in and about his duties as such employé, said car collided with great force and violence with another one of defendant's cars which had been stopped and was standing on the street railway track of defendant, and plaintiff's said intestate was thereby so injured that he died, to plaintiff's damage in the sum aforesaid. Plaintiff avers that his said intestate's death was caused by reason of and as a proximate consequence of the negligence of the conductor, to wit, one Cornelius whose name is otherwise unknown to plaintiff, in the service and employment of defendant, and who then and there had charge or control of the car upon the track of defendant's said railway, with which the car upon which plaintiff's intestate was collided." The demurrers sufficiently appear from the opinion.

The assignments of error referred to in the opinion are as follows: "(15) The court erred in overruling appellant's objection to the following question propounded by appellee to witness James Moseley. (16) Her answer thereto that he was afflicted. (17) In overruling appellant's objection to the following question propounded by the appellee to the same witness: 'Now, I will ask you to tell the jury whether or not that boy was afflicted.' (18) Answer of witness to last-named question. (19) Overruling question propounded by appellee to same witness: 'I will ask you whether or not this other boy of yours contributed to your support.' (20) Answer to that question. (21) Question propounded by appellee to the same witness: 'Then I will ask you to tell the jury how your other boy was afflicted--what was his physical condition?' (22) The answer: 'He was afflicted in his head. He has a dead bone in his head and catarrh, which he has had all his life.' (23) Question propounded by appellee to the same witness: 'I will ask you whether or not he was able to work and earn money.' (24) And the answer to that question. (25) Question propounded by appellee to same witness: 'I will ask you to tell the jury whether or not you have any means of support, other than what you receive from him.' (26) The answer thereto: 'I was entirely dependent upon him."' "(32) Question propounded by appellee to witness McCary: 'At a greater speed than usual?' (33) And the answer thereto: 'No sir; I don't think we were going any faster than we should go.' (34) The court below erred in overruling appellant's motion to exclude what was inscribed on the first page of appellant's rule book. (35) Sustaining appellee's objection to the following question propounded by appellant to the witness Jones: 'Did, or not, the signal you gave to Mr. Moseley indicate what was ahead of him?' (36) Sustaining objection to question propounded by appellant to same witness: 'Mr. Jones, I will ask you to tell the jury whether or not the signal which you gave Mr. Moseley meant for him to stop the car, for the reason that there was danger ahead of him.' (37) Sustaining appellee's objection to the following question propounded by appellant to the same witness: 'What did the signal that you gave Mr. Moseley indicate to him as to the stopping of his car?' (38) Sustaining objection to appellant's question to same witness: 'Tell the jury whether or not you did everything in your power to get him to stop the car."'

The following charges were refused to the defendant: Charge 1 is set out in the opinion. (5) "If the jury believe from the evidence in this case that Moseley, the deceased, was warned or signaled to stop the car, and thereafter negligently failed to do so, and that his negligence in this regard proximately contributed to his death, you must find a verdict in favor of the defendant."

Charge 1 given at plaintiff's request is as follows: "Even though you should believe from all the evidence that Moseley, the intestate, negligently ran the car at a high rate of speed, yet, unless you further believe from the evidence that such negligence proximately contributed to his death, then such negligence would not bar plaintiff's right to recover."

Tillman, Grubb, Bradley & Morrow, for appellant.

Stallings & Drennen, for appellee.

EVANS J.

This suit was brought by the appellee, Chas. A. Moseley, as the administrator of the estate of Thomas S. Moseley, deceased, against appellant, Birmingham Railway, Light & Power Company, a corporation. Plaintiff claimed damages for the alleged negligence of one of appellant's servants, to wit, one Cornelius, a conductor on appellant's street railway, while in discharge of his duties as such conductor, which proximately caused the death of plaintiff's intestate. There were many counts to the complaint, but all of them were eliminated by the action of the lower court, except counts 5 and 7, both of which counted upon the negligence of the conductor of the car into which plaintiff's intestate's car, upon which he was motorman, was run.

The defendant below, appellant here, insists upon questions raised by his demurrer to counts 5 and 7: (1) That said counts show that plaintiff's intestate, who was a motorman on one of defendant's street railway cars, and the said conductor who had charge of the car on defendant's said street railway, into which the car upon which plaintiff's intestate was, was run, were fellow servants; and (2) that subdivision 5 of section 1749 of the Code of 1896 does not apply to street railways operated by electricity, but only to railroads operated by steam, which traverse the country at large, and which are more dangerous to operate than the cars upon an electric street railway.

We think there can be but little doubt that a proper construction of law would declare a motorman upon one car of a street railway to be a fellow servant of a conductor upon another car of the same railway operating cars over the same lines. Any other construction would be too narrow. Both working for the same master, over the same lines of railway and for the same purpose, to wit, transporting passengers from one point to another along such line of railway, we declare to be fellow servants. But we think that to declare that the fifth subdivision of section 1749 of the Code of 1896 only applied to railroads operated by steam locomotives, which traverse the country at large, would also be too narrow a construction. It may be true that, as counsel for appellant ably contend, there were no railways operated by electricity at the time this statute was first passed by the Legislature; and it may also be true that the hazard and danger of operating steam locomotives, with heavy trains, which traverse the country at large, is much greater than that of operating the light cars propelled by electricity upon a street railway. But many of the dangers of the former differ from those of the latter in degree rather than character. In operating railways, whether by steam or electricity, which involves more or less hazard to employés as well as passengers, and where most duties are performed out of sight or immediate superintendence of the master, the law must needs not only make the master careful as to the kind of servants he employs, but must hold the master responsible, under many circumstances, or conditions, for the acts of such servant or employé, not only for the safety of the public, but for the safety of other servants and employés. Whether the motive power be steam or electricity, or whether operated through the country or through the streets of a city, whether heavy trains or light cars are used, they are both railways, and similar dangers are encountered in each; and the negligence of an impecunious servant might become a menace to the life and limb of other servants, as well as to passengers, for which there would be no adequate redress. It would seem also that the Legislature has placed such construction upon subdivision 5 of section 1749 of the Code of 1896, because in subdivision 5 of section 3910 of the Code of 1907 the words "electric motor" are inserted without changing any other word in said subdivision. We are not aware that any of the railroads now transporting passengers and freight across the different parts of the state use electric motors; while practically all, if not all, of the street railways in the state use them exclusively to run their cars. When this law (section 1749 of the Code of 1896) was first passed, it is evident that the Legislature did not then anticipate the running of cars by an electric motor, inasmuch as it made no provision for damages resulting from the...