Central of Georgia Ry. Co. v. Jones

• Decision Date: 16 December 1915
• Docket Number: 6 Div. 169
• Citation: 195 Ala. 378,70 So. 729
• Parties: CENTRAL OF GEORGIA RY. CO. v. JONES.
• Court: Alabama Supreme Court

70 So. 729

195 Ala. 378

CENTRAL OF GEORGIA RY. CO. v. JONES.

6 Div. 169

Supreme Court of Alabama

December 16, 1915

On Rehearing, February 3, 1916

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by Mollie Jones against the Central of Georgia Railway Company for damages for injuries in a crossing accident. Judgment for plaintiff, and defendant appeals. Affirmed.

London & Fitts, of Birmingham, for appellant.

Harsh Beddow & Fitts and Charles C. McNabb, all of Birmingham, for appellee.

ANDERSON C.J.

"The doctrine is well settled in this and most of the other states, as well as by the federal courts, that the contributory negligence of one in charge of, or control of, a train, car, or other vehicle, cannot be visited upon a person who is a passenger therein, whether for reward or not, unless the person so riding has charge or control of the vehicle, or over the person who is driving or operating same." Birmingham & Tuscaloosa Utilities Co. v. Carpenter, 69 So. 626; L. & N.R.R. Co. v Calvert, 170 Ala. 565, 54 So. 184; Birmingham R.R. Co. v. Baker, 132 Ala. 515, 31 So. 618; North Ala. Co. v. Thomas, 164 Ala. 191, 51 So. 418; Elyton Co. v. Mingea, 89 Ala. 521, 7 So. 666. Defendant's pleas A and B set up negligence on the part of the plaintiff for failing to stop and look and listen, though the horse was being driven by another, and there was no averment that she controlled the driver or the vehicle. The trial court did not err in sustaining the plaintiff's demurrer to these pleas.

Charge 6, refused the defendant (being typical of all as suggested in brief), advances the theory of negligence on the part of the plaintiff for a failure to stop and look and listen, notwithstanding she was not in control of the vehicle or driver, and it was properly refused.

Counsel for appellant cite and quote from authorities supporting the doctrine invoked by these pleas and charges, but they are not in line with the weight of authority and have often been repudiated by this court. Elyton Land Co. v. Mingea, 89 Ala. 521, 7 So. 666.

The judgment of the city court is affirmed.

Affirmed.

MAYFIELD, SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.

ANDERSON C.J.

We do not think that the original opinion misconceives defendant's pleas A and B, as they, in effect, set up negligence on the part of the plaintiff, who was riding with the driver, and who was not her agent or servant, and over...