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

• Decision Date: 20 November 1902
• Citation: 135 Ala. 154,33 So. 8
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. OWENS.
• Court: Alabama Supreme Court

33 So. 8

135 Ala. 154

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

Supreme Court of Alabama

November 20, 1902

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by Samuel L. Owens against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed and new trial granted.

Walker Tillman, Campbell & Walker, for appellant.

Bowman Harsh & Beddow, for appellee.

McCLELLAN C.J.

The testimony of the plaintiff alone tends to show that the car was stationary when he attempted to alight from it, and that when he was in the act of alighting it was put in motion with a jerk which threw him to the ground, and inflicted the injuries of which he complains. Four wholly disinterested witnesses testify that the car was in rapid motion, going from 8 to 12 miles an hour, when the plaintiff attempted to alight, and that it was this motion of the car, well known to him, of course, which caused his fall and injuries. Their testimony is corroborated by undisputed evidence as to other circumstances of the occurrence,--the location of the accident at a place where it was not customary or proper for cars to stop; the juxtaposition of plaintiff's boarding house; the extreme violence of the fall, he being turned topsy-turvy thereby, and lighting on his head, so that his attitude when he struck the ground was much that of a man standing on his head (a thing, we take it, much more likely to occur when a man unaccustomed to the feat attempts to get off a rapidly moving car, than when he falls in consequence of a stationary car being put in motion when he is in the act of alighting), etc.; and the plaintiff's testimony is wholly lacking in corroboration of any sort. This state of case shows so clearly to our minds that the preponderance of the evidence was so greatly against the verdict for the plaintiff,--so clearly establishes both the absence of negligence on the part of the defendant, and the want of due care on the part of the plaintiff,--that we feel justified in affirming, the presumption of the correctness of the trial judge's action to the contrary notwithstanding, that the court below erred in denying defendant's motion for a new trial. Railway Co. v. Clay, 108 Ala. 233, 19 So 309; Teague v. Bass (Ala.) 31 So. 4.

The judgment for plaintiff and the order overruling the motion for a new trial must be reversed. A...