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

• Decision Date: 26 November 1907
• Citation: 153 Ala. 178,44 So. 1032
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. HAYES.
• Court: Alabama Supreme Court

44 So. 1032

153 Ala. 178

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

Supreme Court of Alabama

November 26, 1907

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by E. L. Hayes against the Birmingham Railway, Light & Power Company for personal injuries. From a judgment for plaintiff defendant appeals. Reversed and remanded.

The case was tried on counts 5, B, C, and D. Count 5 was for wanton or intentional injury. Count B was as follows "(B) Plaintiff further claims of the defendant the sum of $5,000 damages, for that heretofore, to wit, on the 20th day of April, 1904, the defendant was operating a street railway system in Jefferson county, Ala., and carrying passengers thereon for hire; and plaintiff avers that on one of its lines between Birmingham and Bessemer there is a station or stopping place for cars, and was at that time named 'Rising station,' and he avers that on said date he was going to said station to take passage on a car of defendant, and he avers that said car was flagged when it was about 150 feet from the station--that is to say, signs were made to the motorman in charge of same to stop said car; and plaintiff avers that on the opposite side from the station where the car was, and in the direction in which it was going, there was a public crossing, and he avers that said station and said crossing were located in a populous community, and people crossed and recrossed said crossing at said station in great numbers daily. The demand of trade and public intercourse necessitated the people to cross said track at said place, all of which facts were then known to the agents and servants in charge of and operating said car and he avers that it became and was the duty of the said agents and servants of the defendant operating its cars to pass said crossing at such rate of speed that, on discovering the person in danger thereat, said car might be stopped or slowed up, and to operate same by and along there at a controllable rate of speed; and he avers that on said day and date and at said time and place and under said circumstances he attempted to cross said track at said crossing after said car was signaled to stop, so that he would be on the proper side of the track to take passage on the car, and he avers that said agents and servants in charge of said car, knowing that they were liable to hurt some person by the reckless operation of the car along, by, and over said crossing with reckless disregard for the consequences of their act, and with reckless disregard for the life and safety of human beings whom they knew were liable to cross same at any time wantonly ran said car at a high and uncontrollable rate of speed and in such a wanton manner as to pass by said station and strike plaintiff, wounding and injuring him. [ Here follows a list of the injuries.] And he avers that said injuries were received by and as a proximate consequence of said wanton neglect of said agents and servants of the defendants as aforesaid." Count C is a count in simple negligence for the acts complained of in count B. Count D states generally wanton or intentional misconduct on the part of defendant's servants or agents, acting within the line and scope of their employment, without going into particulars. Demurrers were interposed to count D, for that it joined simple negligence with wanton wrong; for that it is not alleged that the motorman had knowledge of the facts therein alleged; for that it alleged a wanton act, as contradistinguished from a wanton injury; for that it is not alleged or shown that the defendant's servant or agent wantonly ran said car against plaintiff. The exceptions to evidence are sufficiently noted in the opinion.

The following charges were given at the request of the plaintiff: "(6) Although the plaintiff may have been guilty of negligence in going upon the track of the defendant, 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 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 plaintiff, then the defendant is liable, and the verdict of the jury should be for the plaintiff." "(26) Gentlemen, if you find from the evidence in this case that plaintiff was injured as it alleged in count C of the complaint, although you may find that plaintiff was negligent in going upon defendant's track, still, if you further find that defendant's motorman actually discovered plaintiff's peril in time to avoid striking plaintiff by using the appliances at his command, or if by keeping a proper lookout the motorman could have discovered plaintiff's peril in time to have avoided striking plaintiff, then, if this be true, your verdict should be for the plaintiff." "(27) Gentlemen of the jury, the defendant in this case is seeking to escape alleged liability in this cause for injuries alleged to have been inflicted on the plaintiff by pleading that it is not guilty, and that plaintiff was guilty of contributory negligence. I charge you that under the pleas of contributory negligence filed by the defendant in this cause they are not presumptions against the plaintiff that it was guilty of contributory negligence, as is alleged in said pleas, and there is no burden cast upon the plaintiff in this cause to prove affirmatively that he used due care and diligence; but the burden is on the defendant to prove said pleas, unless the evidence for the plaintiff established contributory negligence on his part, and if from all the evidence you find defendant has not proven said pleas, but that plaintiff has proven the allegations of count C of his complaint, then your verdict should be for the plaintiff in this cause." "(29) Gentlemen of the jury, it was the duty of defendant's motorman to keep a lookout for persons or obstructions upon the track, and upon discovering a person upon the track in a position of peril, or going in the direction of the track in such a way as to indicate to the motorman that he was about to put himself in a position of peril, it was the duty of the motorman to use all the appliances at his command to stop the car or materially reduce its speed, in order to prevent its striking a person in front of the car. A use by the motorman of a part of the appliances at his command to stop the car is not sufficient. I charge you, gentlemen, that under the undisputed evidence in this case the motorman who was in charge of the defendant's car did not use all the appliances at his command upon said car to stop the same or reduce its speed before the plaintiff was struck. If you find from the evidence that by the use of all the appliances at the command of the motorman this injury to the plaintiff could have been averted, then the plaintiff is entitled to a verdict, and you should so find."

Charges 2, 3, and 4 refused to the defendant are sufficiently stated in the opinion. The following charges were refused to the defendant also: "(10) I charge you, gentlemen of the jury, that the motorman had the right to assume that the plaintiff would not go upon the track in front of the car when the plaintiff was 40 feet from the track." "(12) I charge you, gentlemen of the jury, that the plaintiff was, under the undisputed testimony in this case guilty of negligence in going on this track in front of the car which struck him." "(17) If the testimony in this case does not, to the reasonable satisfaction of the jury, support the charge that the motorman was guilty of negligence after he discovered the peril of the plaintiff, then the jury cannot find for the plaintiff, even though they may believe that the motorman might have acted with greater promptness prior to his discovery of the peril of the plaintiff." "(18) I charge you, gentlemen of the jury, that the act of the plaintiff in going across the track was a negligent act. I charge you, further, that the motorman had the right to assume that the plaintiff would act as a reasonable man under the circumstances until he became aware that the plaintiff would act rashly; and I charge you, further, that the motorman had the further right to control and govern his car on the assumption that plaintiff would not go upon the track in front of the car until he became aware of his intention to do otherwise." "(26) I charge you, gentlemen of the jury, that the motorman did not, by blowing his whistle in response to a signal of the plaintiff or his companion, if you...