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

• Decision Date: 24 January 1918
• Docket Number: 6 Div. 666
• Citation: 201 Ala. 176,77 So. 702
• Parties: HAMBRIGHT v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

77 So. 702

201 Ala. 176

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

6 Div. 666

Supreme Court of Alabama

January 24, 1918

Appeal from Circuit Court, Jefferson County; C.W. Ferguson, Judge.

Action by J.M. Hambright against the Birmingham Railway, Light &amp Power Company, for damages. Judgment for defendant, and plaintiff appeals. Affirmed.

The first count charges simple negligence in running a car against plaintiff who was the act of crossing the track in a wagon. The second count charges subsequent negligence, and the third count charges wanton negligence. Defendant filed 10 pleas, the general issue, and other pleas of contributory negligence. The following are the pleas referred to in the opinion:

(9) Plaintiff was himself guilty of negligence which proximately contributed to his injuries in this: Plaintiff negligently went on defendant's track or roadbed when the car which struck him or the wagon on which he was riding was in dangerous proximity to him, and negligently remained on said track or roadbed until said car ran against or struck him, with the knowledge on his part in so doing.

(10) Contributory negligence in this: Plaintiff, while said wagon on which he was riding was approaching defendant's track in dangerous proximity to defendant's said car which was then and there approaching on said track, and before said wagon reached said track, and while said wagon was at a safe distance from said track, and while it was so far away from said track that a passing car could not strike it, saw said car approaching in dangerous proximity, and knew of the approach of said street car, and could by the exercise of reasonable care and prudence, which it was his duty to exercise, have stepped from said wagon, and avoided being injured; nevertheless, plaintiff negligently remained on said wagon until said wagon and said street car collided, and as a proximate consequence of such negligence he sustained the injuries complained of.

McCullough & Thomas, of Birmingham, for appellant.

Tillman Bradley & Morrow, of Birmingham, for appellee.

ANDERSON C.J.

There was no evidence whatever introduced in this case tending to fasten willful or wanton misconduct or subsequent negligence upon the defendant's servants in the operation of its car, and the trial court properly gave the general charge for the defendant as to the wanton count, and could have, with equal propriety, given it as to the subsequent...