Birmingham Union Ry. Co. v. Smith

• Decision Date: 19 June 1890
• Citation: 90 Ala. 60,8 So. 86
• Parties: BIRMINGHAM UNION RY. CO. v. SMITH.
• Court: Alabama Supreme Court

8 So. 86

90 Ala. 60

BIRMINGHAM UNION RY. CO. v. SMITH.

Supreme Court of Alabama

June 19, 1890

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

This action was brought by the appellee, Malinda Smith, against the appellant corporation, and sought to recover damages for personal injuries, which were alleged to have been sustained by the plaintiff on account of the culpable negligence of the defendant's employe. The evidence for the plaintiff tended to show that while she was riding on a street-car drawn by mules, and which was owned and operated by the defendant, she signaled the driver to stop; that after the car was stopped, she started to leave it, and while she was alighting therefrom it was started "with a jerk," which caused her to fall on her face, and suffer the injuries here complained of. The evidence for the defendant was in conflict with this, and, tended to show that the car in which the plaintiff was riding was standing still when she alighted from it, and that there was no jerking or starting of the car when plaintiff was alighting from it. On this evidence the defendant requested the following charges in writing, and duly excepted to the refusal of each by the court: (1) "If you believe from the evidence that the moment plaintiff started to get off the car was simultaneous with the starting of the car, then you must find for the defendant." (2) "If the evidence in this case leaves you in doubt and uncertainty whether the car was put in motion when the plaintiff was in the act of getting off the car, or whether the moment plaintiff started to get off the car was simultaneous with the starting of the car, then you must find for the defendant." (3) "If you believe from the evidence that the car was in motion when the plaintiff attempted to get off the car, you must find for the defendant." The fourth and fifth charges are copied in the opinion. There was verdict and judgment for the plaintiff, and the defendant now appeals, and assigns the refusal of the court to give the charges requested by it as error.

Hewitt, Walker & Porter, for appellant.

Sterrett & Campbell, for appellee.

MCCLELLAN J.

The exceptions reserved go to the action of the trial court in refusing to give five charges requested by the defendant below. Of these the first, second, and third were abstract. We find no evidence in the record tending to show "that the moment the plaintiff started to get off the car was simultaneous with the starting of the car," or "that the car was in motion when the plaintiff attempted to get off the car;" and these are the facts upon which these charges based defendant's right to a verdict. On the contrary, plaintiff's evidence tended to show that the car was standing still when she attempted to get off, and was started forward "with a jerk" when that attempt had been so far executed as that she was in the act of stepping off, having one foot on the step, and the other approaching, if it had not touched, the ground. And the evidence of defendant tended to show that plaintiff was entirely off and free from the car before it was again started.

The fourth and fifth charges requested by defendant and refused present the real question involved on this appeal. They are as follows: "(4) If the car was stopped a sufficient length of time for the plaintiff to get off the car by the exercise of ordinary diligence then you must find for the defendant, unless you believe from the evidence that the driver started the car in motion while the plaintiff was getting off the car, and knew she was getting off the car when he started the car. (5) That if the defendant's car was stopped for a reasonable length of time, sufficient to have permitted the plaintiff to have gotten...