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

• Decision Date: 06 July 1906
• Citation: 149 Ala. 539,43 So. 355
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. RANDLE.
• Court: Alabama Supreme Court

43 So. 355

149 Ala. 539

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

Supreme Court of Alabama

July 6, 1906

Rehearing Denied March 2, 1907.

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

Action by W. J. Randle, as administrator of the estate of John M Randle, deceased, against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This was an action for damages for the negligent killing of John M. Randle by running over him with a car being operated by defendant over its street railway on a popular street in the city of Birmingham. The pleadings in the case sufficiently appear from the opinion. The witness Clayton was shown to have been a conductor on the car for several months. He was not a motorman, but he testified that he had not ascertained any knowledge as a motorman, but that he had ascertained some knowledge as a conductor; that at the time of the accident he had been on the car about three days as conductor, and had been conductor since the action; that he had never stopped the car, but had seen the cars stopped; that he had had experience in observing and noticing motormen stop cars, the rate of speed they were going, and the distance in which they can be stopped. He was then asked: "Can you tell the jury as to the distance the car would have to go before it could be stopped, when it was going at the rate of 15 miles an hour?" Witness answered: "Upgrade as it was at that immediate place, the motorman could have stopped the car in three lengths of the car, and the cars are from 28 to 30 feet long." There was objection to the question, and a motion to exclude the answer. The following question was propounded to the witness J. M. Loggin: "Now, I will ask you to state this, the question I asked you: From the point where you said you saw the railroad track, where it struck Mr. Randle, how far was it from that point to where you last saw the car before it did strike Mr. Randle, passing by your house?" The witness answered: "I will say that it was 25 to 30 feet from where the car struck the man to the point where I last saw the car before it did strike him." There was objection to both question and answer. The other facts sufficiently appear in the opinion of the court.

At the request of the plaintiff, the court gave the following written charges: (1) "The court charges the jury, if they believe from the evidence that the killing of Randle was the result of the wanton negligence of the motorman, your verdict must be for the plaintiff in such sum as the jury think proper, not exceeding $25,000." (4) "The court charges the jury, if the jury are reasonably satisfied from the evidence that Randle's death was caused by the wanton negligence of the defendant's employé, the jury must find a verdict for the plaintiff." (7) "The court charges the jury that if the motorman saw Randle ahead of the car on the track in a dangerous position with reference to the car, or if he saw Randle in dangerous proximity to the track, it at once became his duty to use every means at his command to prevent the injuries to Randle and if he willfully failed to do so your verdict must be for the plaintiff." (8) "The court charges the jury that, if they are reasonably satisfied from the evidence that the plaintiff has sustained the averments of the third count as applied to the law as given by the court, then the plaintiff is entitled to recover."

The defendant requested a number of charges, which were refused but which it is unnecessary here to set out. Charge 11, refused to the defendant, was the affirmative charge as to the third count of the complaint.

Motion was made for a new trial, predicated upon the errors and matters discussed in the opinion, but was overruled. There was a verdict for plaintiff, and his damages were assessed in the sum of $13,000.

Tillman, Grub, Bradley & Morrow, for appellant.

Denson & Ullman and W. A. Denson, for appellee.

DOWDELL J.

The complaint as originally filed contained three counts. The first count was subsequently withdrawn, and the third count amended. The second count counted on simple negligence, and was in case, while the third count, as amended, was in trespass. This count charged that "The defendant wantonly, willfully, or intentionally ran its car or cars against and over the plaintiff's decedent at said time and place killing the decedent,"...