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

• Decision Date: 11 January 1917
• Docket Number: 6 Div. 346
• Citation: 198 Ala. 630,73 So. 950
• Court: Alabama Supreme Court
• Parties: HAMILTON v. BIRMINGHAM RY., LIGHT & POWER CO.

73 So. 950

198 Ala. 630

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

6 Div. 346

Supreme Court of Alabama

January 11, 1917

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Action by J.W. Hamilton against the Birmingham Railway, Light &amp Power Company. Judgment for defendant and order overruling motion for new trial, and plaintiff appeals. Affirmed.

Harsh Harsh & Harsh and Burgin, Jenkins & Brown, all of Birmingham for appellant.

Tillman Bradley & Morrow and L.C. Leadbeater, all of Birmingham, for appellee.

MAYFIELD J.

The action is by appellant to recover damages as for personal injuries suffered by him in consequence of a collision between a motorcycle, ridden and driven by him, and a street car operated by appellee. The complaint contained a count or counts, declaring on original negligence, subsequent negligence, and wantonness. There were pleas of contributory negligence. There is some confusion in the record touching which counts the pleas of contributory negligence were allowed to, and which counts the plea of the general issue only was allowed to; but there is no assignment of error as to any ruling on the pleadings. The trial court gave the affirmative charge for the defendant as to the counts declaring on subsequent negligence and wantonness, and the jury found for the defendant on the count declaring on initial negligence. The plaintiff moved the court to set aside the verdict and award a new trial, which motion the trial court overruled. Plaintiff assigns many errors as to instructions given at the request of defendant, and assigns error, also, as to the overruling of his motion for a new trial.

The following facts were shown without dispute: Plaintiff was in the saddle of a motorcycle, Mr. Neill riding behind him, when a collision occurred between a street car operated by defendant company, approaching from behind on Third avenue between Eighth and Ninth streets, in the city of Birmingham, and plaintiff's motorcycle. The street car line had double tracks on Third avenue. It was 17 feet from the north track to the curb of the street. Both tracks were embedded in the street and were a part thereof. The evidence showed the great frequency of the use of Third avenue between Eighth and Tenth streets, and especially during baseball afternoons. This accident occurred on a baseball afternoon, viz., on the 21st of May, 1914. About the time the street car overtook plaintiff, plaintiff had reached a point where two automobiles were parked on the north side of Third avenue, leaving a space of only about six feet between the street car tracks and the automobiles. It was in this space that the collision occurred.

The plaintiff testified, in part, as follows:

"The trailer of the street car struck me. Up to the time I was struck, the street car had given no signals of its approach. I first knew of its approach when the front end of the motor car passed by me, rushed by me. It was going very rapidly, I thought; in my judgment about 25 miles an hour. I was almost stopped at the time I was struck, possibly running two or three or four miles an hour. I tried to stop my machine when I discovered the street car was approaching. There was an automobile on the right-hand side, leaving a space of about six feet between the automobile and the street car track. I felt a suction from that car, from that train, as the front car passed me; when the suction came, that overbalanced me on the machine."

Jack M. Neill, a witness for plaintiff, who was riding the motorcycle with plaintiff at the time of the injury, testified, in part, as follows:

"It was not any part of the car that the handle bars hit; the car hit the handle bars, the trailer. The motor car got entirely by our machine without touching any part of it, and about the time that the motor car passed our machine Mr. Hamilton tried to dodge in between some automobiles. I was not driving. It may have been that in trying to dodge in between these automobiles his motorcycle got so close to the trailer that the trailer hit the handle bars; I didn't see it exactly. The motor car got entirely by the motorcycle. It may have been the case that just about that time the motorcycle tried to cut in between some automobile and came so close to the street car that the side of the trailer hit the handle bars of the motorcycle; I think that is the way it seemed to me."

J.G. Tidwell, a witness for plaintiff, testified, in part, as follows:

"I was on the Ensley car on or about the 21st day of May, 1914, at the time Mr. Hamilton was hurt. I was on the right-hand side going west when the car was going west. I was on the trailer. I saw the car when it struck Mr. Hamilton's motorcycle. It was either the rear end of the motor car or the front end of the trailer that struck Hamilton's motorcycle; I am not positive which. I don't know the speed of the car at that time. I guess it was going about 15 miles an hour, I would say. I would say it was going about that fast, maybe more; I wouldn't say. It wasn't going what I would call so awful fast, and it wasn't so very slow. The best of my knowledge I would say 15 miles an hour. The motorcycle was going very slow when I saw it first. I only saw it just a second or two before it hit the street car."

There was no material conflict in the evidence. There was some difference as to the speed of the street car, and as to whether it was the rear end of the motor car or the front end of the trailer which collided with the motorcycle on which plaintiff was riding. But there was no conflict at all that the front end--and even the middle--of the front street car passed the plaintiff and his motorcycle in safety and without harming him, and that the collision was with the rear end of the front street car, or with the trailer at a point about the middle thereof.

It therefore appears as a physical fact that the motorcycle ran into the street car, or approached so near the street car track as to collide with the trailer, after the motorman had safely passed rider and machine, with the motor car of his train.

There was no evidence whatever to show that the motorman in control of the movement of the street car, or any other agent or servant of defendant, had any knowledge or notice of the danger or peril of plaintiff, or that any one of them had knowledge or notice of any facts to charge them with cognizance of plaintiff's peril; consequently, there was no evidence to support the count for subsequent negligence. Nor was there any evidence, or any tendency of the evidence, to support the count as for willful or wanton injury; hence the court properly gave the affirmative charge for the defendant as to each of these counts.

We do not mean to say or hold that there was any evidence on the part of the defendant as to original or initial negligence but, even if such were the case, it clearly and indisputably appears that the plaintiff was guilty of negligence which proximately contributed to his own injury, in that after the motor car, or the front end of it, had passed his motorcycle with safety to him, he drove, or allowed his motorcycle to approach, too near the street cars, thereby causing the collision resulting in his injury. The street car was on a fixed track, of course; it could not approach any nearer the motorcycle than the track would allow, without leaving the track; and there is no evidence that it left its track or rails. The motorcycle could approach the cars after the front end of the forward car had safely passed it and its driver; and it did so approach the cars, or the collision could not have happened. The physical facts exclude any other theory or supposition that would account for the injury. The theory that the suction from the passing street car was sufficient to pull the motorcycle under the moving car is wholly unreasonable, and...