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

• Decision Date: 21 November 1918
• Docket Number: 6 Div. 692
• Citation: 202 Ala. 520,81 So. 22
• Parties: HAMMETT v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

81 So. 22

202 Ala. 520

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

6 Div. 692

Supreme Court of Alabama

November 21, 1918

Rehearing Denied Jan. 16, 1919

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Action by Harry A. Hammett against the Birmingham Railway, Light &amp Power Company, for injuries sustained while a passenger. Judgment for defendant, and plaintiff appeals. Affirmed.

In an action for injuries to a passenger, an instruction held harmless error.

The plaintiff stated his case as for injuries proximately caused by the negligence of the servants or agents of the defendant while acting in the line and scope of their employment in and about the carriage of plaintiff as a passenger of the defendant. The defendant pleaded the general issue and the following special plea 2:

Plaintiff himself was guilty of negligence which proximately contributed to his injuries in this, that he negligently stepped from the street car into the way of a motorcycle then and there rapidly approaching on the street, without looking or listening for the approach there and received his injuries as alleged.

The demurrers are that the contributory negligence averred is but the conclusion of the pleader. No facts are alleged in said plea to which contributory negligence can be attached as a conclusion of law. It is not alleged in said plea that plaintiff was aware of the approach of said motorcycle, and that for aught that appears in said plea plaintiff's injuries were proximately caused by the combined negligence of the defendant's servants or agents and the negligence of the operator of said motorcycle, without negligence of any sort on the part of the plaintiff.

The following charges were given at the request of the defendant:

1. Even though you should find from the evidence that the accident would not have happened but for the acts of the defendant complained of in this case, in the event that you further find therefrom that there were other acts for which defendant is not responsible which intervened between the act of the defendant and the injury to the plaintiff, and that these acts were an efficient cause of the injury to the plaintiff, your verdict must be for the defendant.

2. If you believe the evidence, the operator of the motorcycle was not connected with or in the employ of the defendant.

3. If you believe from the evidence that plaintiff alighted in safety from the car and started to walk towards the curb of the viaduct, but before reaching the curb was struck and injured by a motorcycle, then the plaintiff cannot recover in this case, and your verdict must be for the defendant.

5. The relation of passenger and carrier is eliminated when the passenger alights from the car in safety and proceeds on his way, and if while so proceeding the former passenger is injured by another person not connected with the carrier then the carrier would not be responsible.

6. If you believe from the evidence that plaintiff alighted from the car in safety and started to walk towards the curbing, and if you further believe from the evidence that plaintiff while so walking approached near the curbing of the viaduct, and while there was struck and injured by a motorcycle operated by a Mr. Hudson, then the plaintiff cannot recover in this case, and your verdict must be in favor of the defendant.

8. The court charges you that it is not negligence as a matter of law to stop a car 50 or 75 feet from the regular stopping place, unless the operatives of said car knew, or ought to have known, of some fact which would make it dangerous for passengers to alight at said place.

9. In the event you should find from the evidence that the employés of the defendant were negligent in stopping the car where they did, but should further find that there was an independent, efficient, intervening cause between that negligence and the plaintiff's injuries the defendant would not be liable in this case.

11. If you are reasonably satisfied from the evidence that the plaintiff negligently stepped from the exit of the street car in the way of an approaching motorcycle, and that as a proximate consequence thereof was struck and injured, then in that event your verdict must be in favor of the defendant, even though the defendant's servant was also negligent.

12. The court charges you that this defendant is not responsible for any of the results of the negligence of the rider of the motorcycle.

13. If the plaintiff's being struck by a motorcycle was not such a result as that the defendant could have reasonably been expected to anticipate as likely to ensue from his conduct on the occasion complained of, it cannot be regarded as a natural consequence of said conduct for which the defendant could be held legally responsible.

14. The court charges you that a person is not liable for results of his acts which, in the ordinary course of things, would not flow or result therefrom.

15. The court charges you that the operatives of defendant's street car had a right to assume that the other travelers on the street at that time and place would observe the city ordinance forbidding any vehicle to pass a street car after the same had stopped to discharge passengers on the side on which passengers alight.

17. The court charges you that if the mind of any individual juror is not reasonably satisfied that the plaintiff ought to recover in this case, you cannot find for the plaintiff.

16. If the plaintiff voluntarily left the car of the defendant at the place at which it stopped, even though such place was not the regular stop, and had ceased to be a passenger of the defendant at the time that he was struck, your verdict must be for the defendant.

Charges 19 and 21 are the same proposition as charge 16 in different phraseology.

J.B. Ivey and W.A. Denson, both of Birmingham, for appellant.

Tillman, Bradley & Morrow, of Birmingham, for appellee.

SAYRE J.

Action by appellant, a passenger, against appellee a common carrier for personal injuries. It is the duty of a street railroad carrier to provide a reasonably safe place for the landing of its passengers, as explained in Montgomery Street Ry. Co. v. Mason, 133 Ala. 508, 32 So. 261,...