Frierson v. Frazier

• Decision Date: 20 December 1904
• Citation: 142 Ala. 232,37 So. 825
• Parties: FRIERSON ET AL. v. FRAZIER.
• Court: Alabama Supreme Court

37 So. 825

142 Ala. 232

FRIERSON ET AL. v. FRAZIER.

Supreme Court of Alabama

December 20, 1904

Appeal from Circuit Court, Covington County; John P. Hubbard, Judge.

Action by W. L. Frazier against G. B. Frierson and another. From a judgment for plaintiff, defendants appeal. Reversed.

This is an action to recover damages of defendants, who were operating a ferry across the Conecuh river, near River Falls in Covington county. The plaintiff drove his wagon, which was drawn by two mules, upon the flatboat of appellant; there being in the vehicle a chest of tools. After the boat had gotten under way, the mules, which had not been unhitched became uncontrollable, and backed into the river. To recover damages for such loss, plaintiff sued. The evidence showed that said ferry was not equipped with a rear guard rail. Issue was joined on plea of general issue, in short, by consent, with leave to introduce any matter of defense in like manner as if specially pleaded. Plaintiff asked the witness Frierson, after he had testified that a rear guard rail was not essential to a properly guarded ferry, whether he had not seen such a rear rail on a ferryboat? To this question and the answer thereto, defendants objected. The court overruled such objection, and defendants excepted. The plaintiff requested the court to give the following written charge: "(2) If, from the evidence, you are reasonably satisfied that the defendant was guilty of negligence, and that such negligence was the direct cause of the injuries complained of, your verdict should be for the plaintiff." The court gave said charge, to the giving of which charge defendant duly excepted. The defendant requested the court to give the following written charges: "(3) The court charges the jury that if they are reasonably satisfied from the evidence that, when Frazier drove his team upon the ferryboat, he was requested by the ferryman to unhitch his mules from the wagon, and he refused to do so retaining the dominion and control of said animals and other property, and such refusal and retention of control directly and proximately contributed to the said loss of said property, and said loss would not have accrued except for such refusal and retention aforesaid, then they must find for the defendants, unless reasonably satisfied from the evidence that the defendants were guilty of gross negligence." "(6) If you are reasonably satisfied from the evidence that Frazier was not to pay ferriage, then the plaintiff Frazier, is not entitled to recover. (7) If you are reasonably satisfied from the evidence that Frierson and Cooper had agreed that Frazier was to pay no ferriage, then plaintiff cannot recover. (8) The court charges the jury that, under the evidence in this case, the defendants, in operating the ferryboat in question, were not common carriers of persons and property, or either, and cannot be held liable as such in this action." The court refused to give each of said charges so requested by defendants, to each of which rulings the defendants separately excepted.

Claude Riley, Stallings & Reid, and Henry Opp, for appellants.

Powell & Albritton, for appellee.

McCLELLAN C.J.

The evidence showed beyond controversy that Frazier, the plaintiff, continued in immediate...