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

• Citation: 146 Ala. 273,40 So. 988
• Parties: BIRMINGHAM RY. LIGHT & POWER CO. v. HINTON.
• Decision Date: 17 April 1906
• Court: Supreme Court of Alabama

40 So. 988

146 Ala. 273

BIRMINGHAM RY. LIGHT & POWER CO. v. HINTON.

Supreme Court of Alabama

April 17, 1906

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by Laura V. Hinton against the Birmingham Railway, Light &amp Power Company. From an order granting a new trial to plaintiff after a verdict for defendant, it appeals. Affirmed.

In the original case appellee sued appellant for personal injuries alleged to have been received by her while escaping from a burning house in which she was living, and it is alleged that the fire was caused by sparks emitted from an engine on defendant's railway, which was negligently operated or was negligently allowed to be operated without the proper appliances for arresting the sparks, etc. The defense set up and which seems to be supported by the testimony, was that she escaped from the house and reached a place of safety without injury, and afterwards left her place of safety and returned to the burning building, and on coming out after her return she received the injuries complained of. Under the charge of the court the jury returned a verdict for the defendant, whereupon the plaintiff moved the court to set aside the verdict of the jury and judgment in said cause on the grounds: "(1) The court erred in that part of its oral charge to the jury in which it charged the jury to the effect that if the plaintiff, after the house was discovered to be on fire, got out or was carried out of the house to a place of safety, and then went back into the house and was burned, she cannot recover. (2) The court erred in giving the third written charge requested by the defendant, as follows 'If the jury believe from the evidence that the plaintiff, after the house caught fire, got out of it in safety, and voluntarily returned to it with her sister, and was thereafter burned, the jury must find for the defendant.' (3) The court erred in giving the fifth written charge requested by defendant, which is as follows 'If the jury are not reasonably satisfied from all the evidence whether the house caught on fire from the outside or from the closet and on the inside of the house, the jury must find for the defendant.' (4) The court erred in giving the sixth written charge requested by the defendant as follows: 'If plaintiff is entitled to recover at all, she can only recover such damages, including pain and suffering, as was caused by her burns, and cannot recover for having to go in the night in the cold, and cannot recover punitive damages.' " This motion was filed November 30, 1904. The entries on the motion docket as to the disposition of this motion are as follows: "Dec. 10, 1904, passed to Dec. 17, 1904. Dec. 17, '04, passed to Dec. 24, '04. Dec....