Garth v. North Alabama Traction Co.

Decision Date24 November 1906
Citation148 Ala. 96,42 So. 627
PartiesGARTH v. NORTH ALABAMA TRACTION CO.
CourtAlabama Supreme Court

Appeal from Circuit Court, Morgan County; D. W. Speake, Judge.

"To be officially reported."

Action by Ed Garth against the North Alabama Traction Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This was an action for damages for personal injury. The allegation of negligence in the first count is that the defendant's servants so negligently and carelessly conducted themselves in and about the management of the electric car that the same was caused to run upon or against a wagon upon which plaintiff was riding at a certain point, overturning the wagon, throwing plaintiff violently to the ground, and throwing the said wagon upon plaintiff, inflicting sundry damages alleged. Count 2 is in the following language "Plaintiff claims of the defendant $3,000, for that on the 25th day of February, 1904, the defendant's agents and servants, while engaged in running an electric car or street car upon and over said electric railway in the town of New Decatur, Ala., recklessly and wantonly or intentionally ran said car or street car against a wagon upon which plaintiff was seated and driving, at or near the intersection of Gordon Drive and Jackson street, public highways in the town of New Decatur, Ala., overturning said wagon and throwing plaintiff violently to the ground, causing plaintiff to sustain a severe bruise and other injuries" specifically set out. The third count describes the manner of the running of the car, and alleges that it was being run at a high rate of speed, and did not slow up when they saw plaintiff's wagon crossing or about to cross the track and did not give any warning of approach, or, if they checked the speed of the car, it was immaterial, and, if they gave warnings, they were low and insufficient, and that the servants in charge of the car carelessly and negligently or wantonly ran against the wagon as aforesaid, causing it to be overturned, throwing plaintiff violently to the ground. The fifth count lays negligence in the defendant in failing to properly equip the car with modern appliances, and alleges that the car was secondhand and worn and old, and avers as additional negligence the negligence as laid in count 3. The negligence averred in count 7 is practically the same as laid in counts 3 and 5, although stated in different language.

Demurrers were interposed to all these counts; but it is not necessary to set out the grounds, except as to counts 2 and 7. Demurrers were interposed to counts 2 and 7 as follows: To count 2, because it is uncertain, from the character of negligence charged, whether simple negligence or wanton negligence is intended to be charged; because it joins disjunctively in the same count simple negligence and wanton negligence. To count 7: (1) Because said count shows upon its face that plaintiff was guilty of negligence proximately contributing to the injury complained of in this: that he attempted to cross said track in a covered wagon without showing that he discharged the duty incumbent upon him of stopping, looking, and listening before attempting to cross said track. (2) Said count does not show the relationship of the disordered condition or the insufficiency thereof to the injury complained of.

The facts upon which the trial was had and upon which the opinion was based sufficiently appear in the opinion.

A number of pleas were interposed by the defendant, setting up contributory negligence, all based upon the contributory negligence of the plaintiff in attempting to cross the track in a covered wagon without stopping, looking, or listening for the approach of a car, or without endeavoring to ascertain whether he could safely cross before attempting to do so. These pleas were interposed to the counts in simple negligence. The second plea was in the following language "For further answer to each of the counts, severally and separately, numbered 1, 4, and 6, defendant says that plaintiff was guilty of negligence on his part which proximately contributed to the injury complained of in this that he was riding in a covered wagon and attempted to cross the track of defendant in front of an approaching car without stopping, looking, and listening to the approach of said car."

To this plea the following demurrers were interposed: "Said plea is defective in this: It alleges that this plaintiff did not stop, look, and listen, whereas, the law did not require this plaintiff to listen, in addition to stopping and looking unless the circumstances at the time and place would make stopping and looking ineffectual, and there is nothing in said plea showing that the approach of the car could not have been seen by stopping and looking without listening. Said plea does not allege a state of facts whereby it became the duty of this plaintiff to listen for the approach of a car on defendant's road.

The plaintiff excepted to the following portion of the court's oral charge: "If the plaintiff was guilty of negligence that contributed proximately to the injury in the case, if plaintiff was injured, then plaintiff cannot recover in this case, unless the defendant was guilty of subsequent negligence that proximately contributed to the plaintiff's injury, if plaintiff was injured."

The plaintiff requested the following written charges, which were refused: Charge 9: "I charge you, gentlemen of the jury that the public have the right to use both sides of the street called Gordon Drive where it intersects with Jackson street, and to cross over the same for the purpose of getting from one side to the other; and it was the duty of the defendant's motorman in charge of the car which injured plaintiff, if plaintiff was injured, to retain such control over the car on approaching this place as to be able to bring it to a full stop before striking one in the act of crossing the track." Charge 11: "If the jury should be reasonably satisfied from the evidence that plaintiff was guilty of negligence in allowing the wagon upon which he was riding to be on the track of the defendant, so as to expose it to danger, by the running of the car, yet such negligence would not be considered as contributory negligence to the injury (if plaintiff was injured), if the jury believe from the evidence to their reasonable satisfaction that the motorman saw the exposed condition of the wagon to danger on the track, in time to avoid the injury, by reducing the rate of speed in time so as to control it and avoid the injury, or to stop the car, if necessary, to prevent the injury, and the motorman negligently failed to do it, such warning and reduced the speed or stop said car and failed to use all means at his command to avoid the injury, this negligence of the motorman was the proximate cause of the injury to plaintiff; and if you find this to be true, plaintiff is entitled to recover in this case notwithstanding plaintiff's negligence (if plaintiff was negligent) in driving upon defendant's track." Charge 19: "Gentlemen of the jury, by the plaintiff admitting the written showing as to what the absent witness McElwee would testify, if present, the plaintiff does not admit thereby that said written showing is true." Upon this charge is the following indorsement: "Refused, because given in general charge." Charge 12: "I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case that defendant's motorman, who was in charge of defendant's car as motorman which injured plaintiff, if plaintiff was injured, saw the wagon in which plai...

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3 cases
  • Crocker v. Lee
    • United States
    • Alabama Supreme Court
    • August 30, 1954
    ...in the complaint and properly submitted to the jury, since contributory negligence is no defense to such a charge. Garth v. North Alabama Traction Co., 148 Ala. 96, 42 So. 627; Ashley v. McMurray, 222 Ala. 32(9), 130 So. 401. Charges C, 10 and 11 violated this principle and were erroneously......
  • J.C. Byram & Co. v. Bryan
    • United States
    • Alabama Supreme Court
    • March 31, 1932
    ... ... demurrer interposed. Alabama Great Southern Railroad Co ... v. Burgess, 114 Ala. 587, 22 So. 169; ... Louis & S. F. Ry. Co. v. Dennis, 212 Ala. 590, 103 So ... 894; Garth v. Alabama Traction Co., 148 Ala. 96, 42 ... So. 627; Southern Railway ... The street car was ... moving west on Tenth avenue, and the truck north on Fiftieth ... street, going down grade toward the intersection ... ...
  • Mobile Light & R. Co. v. Thomas
    • United States
    • Alabama Court of Appeals
    • November 12, 1918
    ... ... of crossing the track." ... In the ... case of Garth v. Ala. Traction Co., 148 Ala. 96, 42 ... So. 627, it is said: ... "A ... ...

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