Highland Ave. & B.R. Co. v. Winn

• Decision Date: 24 June 1891
• Citation: 9 So. 509,93 Ala. 306
• Parties: HIGHLAND AVE. & B. R. CO. v. WINN.
• Court: Alabama Supreme Court

9 So. 509

93 Ala. 306

HIGHLAND AVE. & B. R. CO. v. WINN.

Supreme Court of Alabama

June 24, 1891

Appeal from city court of Birmingham; HENRY A. SHARPE, Judge.

This was an action brought by the appellee, Sarah D. Winn, against the appellant to recover damages for personal injuries. The complaint contained two counts, the substance of each of which is substantially set forth in the opinion. The evidence, as is shown by the bill of exceptions, tended to show that the plaintiff, who lived on Avenue D, in the city of Birmingham, got on the defendant's dummy train on First avenue, in the said city, between Nineteenth and Twentieth streets; that she was deaf; that she did not know whether the conductor knew whether she was deaf or not; that at the time of paying her fare to the conductor, she asked him to put her off at Avenue D; that the conductor did nothing to prevent her from getting off the car at Twenty-second street; that, when she asked the conductor to stop, he bowed his head, as though he wished to go further down the avenue; that she again asked him to let her off, and he then touched her in the back; that she went out to the door, and said that the car had not stopped; that the conductor was standing right on the step, close to her, and he made motions to her to get off; that the conductor motioned to her two or three times to get off; that, as the car had not stopped, she said, "Must I get out? this car has not stopped," and then the conductor motioned to her again to get off; that as she went to step down she felt a jerk in the cars that threw her on the ground, whereby her arm was broken There was conflict in the evidence as to what the conductor did; the defendant's evidence tending to show that the conductor endeavored to prevent the plaintiff from getting off the car at the place she alighted. It was also shown that the place at which plaintiff alighted was between Avenues D and E, beyond the crossing of Avenue D, and that the car never stopped before plaintiff alighted. The defendant further offered in evidence section 484 of the city ordinances of Birmingham, which makes it unlawful for a dummy train to stop, except just beyond the further crossing of a street or avenue. Upon the introduction of all the evidence the plaintiff requested the court to give the following written charge: "If the jury believe from the evidence that at the time plaintiff stepped off the train it was going at such a rate of speed that she might reasonably believe that she could step off without danger of injury, and she stepped off at the command or order of the conductor, whether said command or order was given by words or by motions, her stepping off, under such circumstances, would not be negligence on the part of the plaintiff, and of itself would not prevent her recovering in this action." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following written charges which were asked by it (1) "That, if the plaintiff voluntarily attempted to leave the train while in motion between Avenues D and E then she was guilty of contributory negligence, and cannot recover." (2) "That there is a fatal variance between the allegations and proof in this case which will prevent the plaintiff from recovering in this action." (3) "There is no evidence that the engineer knew the plaintiff was in the act of alighting from the train." (4) "That under the complaint the plaintiff is not entitled to recover for the negligence of the engineer in making a sudden jerk of the train." (5) "That if the jury believe that the train of defendant had passed beyond the far crossing of Avenue D, then it was not lawful for defendant to stop the train until it reached another street crossing, and if the plaintiff attempted to leave the car while in motion between the avenues, and, while so attempting to leave the moving car, was injured, then this would be contributory negligence on her part which would defeat a recovery by her." (6) "If the jury believe the evidence, they will find for the defendant." (7) "That, under the allegations of the complaint, the plaintiff would not be entitled to recover for any mere acts of negligence of defendant's servants." There was judgment for the plaintiff. This appeal is brought by the defendant, and the rulings of the court, the giving of the charge asked by the plaintiff, and refusing those requested by defendant, are assigned as error.

Alex. T. London, for appellant.

J. E. Miles and Cumming & Hibbard, for appellee.

McCLELLAN J.

The complaint contains two counts, each claiming damages for injuries alleged to have been sustained by plaintiff in attempting to alight from a slowly moving car of a "dummy" street railway upon which she was a passenger. The first count, after alleging that the plaintiff notified the conductor as to her destination, that the train was not stopped there, but ran a block beyond, and that it then came almost to a stop for the purpose of letting her off, proceeds: "The said conductor ordered plaintiff to get off, which plaintiff refused to do because the train was not fully stopped, whereupon the said conductor raised his hand in a threatening manner, as if he, the said conductor intended forcing plaintiff off, ordering plaintiff again to get off, plaintiff being a woman without protection, and, through fear of being pushed off by said conductor, attempted to get off, and in so attempting was thrown to the ground; said fall being caused by the wrongful and malicious act of said conductor in failing to have said train completely stopped before requiring or forcing her to get off, whereby plaintiff received great bodily injury," etc. The second count follows the first up to the attempt of plaintiff to get off the train, and continues: "*** Plaintiff, through fear of being forced off, attempted to get off of said train, which at the time was running very slow, but, as plaintiff was preparing to get off, the engineer *** caused the engine to make a sudden jerk, whereby plaintiff was thrown to the ground,...