Holmes v. Birmingham Transit Co., 6 Div. 348

• Decision Date: 20 August 1959
• Docket Number: 6 Div. 348
• Parties: Altie Belle HOLMES v. BIRMINGHAM TRANSIT CO.
• Court: Alabama Supreme Court

Page 912

116 So.2d 912

270 Ala. 215

Altie Belle HOLMES v. BIRMINGHAM TRANSIT CO.

6 Div. 348.

Supreme Court of Alabama.

Aug. 20, 1959.

Rehearing Denied Sept. 17, 1959.

Further Rehearing Denied Jan. 21, 1960.

Clifford Emond, Sr., Birmingham, for appellant.

Deramus, Fitts & Johnston and Jas. C. Barton, Birmingham, for appellee.

STAKELY, Justice.

The application for rehearing was filed in this court too late by one day. Ordinarily this court would not consider it and would dismiss the same. However, upon reading the application for rehearing, it seems to us that there is a just criticism of the opinion which should be corrected. The opinion did not sufficiently consider the relationship of passenger and carrier between the plaintiff and the defendant. Accordingly, the writer on his own motion has placed the case on the rehearing docket. As a result the original opinion is withdrawn and this opinion is substituted in lieu thereof.

This is a suit brought by Altie Belle Holmes (appellant) against Birmingham Transit Company, a corporation (appellee), for injuries alleged to have been sustained by the appellant (plaintiff below), while a passenger for hire on a bus operated by the appellee (defendant below), on January 23, 1957, at a stop on appellee's bus route known as Elizabeth Station in Birmingham, Jefferson County, Alabama.

The appellee was a common carrier of passengers for hire operating a transportation system in the City of Birmingham, Alabama.

The plaintiff alleged that at said time and place as she was alighting from the said bus the defendant, acting by and through its agent, servant or employee who was acting within the line and scope of his employment as such, negligently operated said bus and as a proximate consequence of said negligence the plaintiff sustained the injuries for which she sues.

The pleading was in short by consent, including the general issue with leave to give in evidence any matter which if well pleaded would be admissible in defense of the action.

Upon conclusion of the evidence the defendant requested the affirmative charge in writing which was refused by the court. The court thereupon submitted the case to the jury which returned a verdict in favor of the defendant. There was a motion for a new trial which the court overruled. This appeal followed.

We are not intending to show that the defendant was entitled to the affirmative charge as might have been inferred from the original opinion, but that the case went to the jury without any presumption arising either from the doctrine of res ipsa loquitur or from the relationship of carrier and passenger.

The evidence showed substantially in part the following. Drew McKenzie, a witness for the plaintiff, testified, among other things, that he was about to board the bus involved in the accident at Elizabeth Station, that the accident occurred around 8:00 a. m. and that he did not know the plaintiff before the accident occurred. He testified in substance that he saw Mrs. Holmes 'standing right there by the bus door' before the accident occurred and that the bus 'made a kind of a move like that' and then he 'saw her come out of the door on her stomach', 'it made a kind of a little 'vary' like that, and when I seen her she had done fell out on the ground, did it so quick.' 'The bus kind of 'varied' a little bit, just like that, it didn't go nowhere, just kind of 'varied' like that. I saw her come out and hit this concrete.' The witness further testified that 'that bus kind of made a little variance like that and she come tumbling out of there.' The witness testified the bus doors were open at the time the bus moved.

The witness Emma Brown testified for the plaintiff in substance that she was on her way to work at the time of the accident and was waiting at the bus stop to board the bus at the time of the occurrence of this accident. She testified that she was looking right at Mrs. Holmes when she fell from the bus. She testified that 'Mrs. Holmes began to step off the bus and the bus gave a jerk and she fell off.' She testified that she picked the plaintiff up and sat her on a bench and brushed her coat off, that she didn't know Mrs. Holmes and that thereafter she boarded the bus and that the plaintiff 'hobbled on to school.' She testified that 'the jerked' and that thereafter she boarded the bus and went on to her work.

Mrs. Belle Agnew Horton, witness for the plaintiff, testified in substance that she lived in Birmingham and that her occupation was school teacher and that she taught at Lee School in West End. She further testified that she remembered the occasion in January, 1957, when Mrs. Holmes complained of injuries a little after 8:00 in the morning and that she had observed Mrs. Holmes on the couch in the restroom by herself, putting cold packs on her leg and she looked sick, like she was in pain.

The plaintiff, Altie Belle Holmes, testified in substance that she was sixty-eight years of age and worked for the Board of Education as a school teacher. She had lived at the Ridgely Apartments in Birmingham for nearly thirty years and had been employed by the board of education as a teacher since 1928 with the exception of one year when she worked for the FBI in Washington. Her teaching was confined to the 4th and 5th grades and sometimes the 6th grade. Her teaching was always in the elementary school.

She further testified that on the morning of the accident it was cold and misting snow and spitting a little rain or something and that she wore a coat suit and a mouton coat. She testified that she had a soft velvet pocketbook in her hand and a school register which looked something like a folder and a set of papers belonging to the class. She further testified that when the bus stopped at Elizabeth Station, 'I just got up to get off and I got up to the door, why something jerked, or something, and I went out and knocked the breath out of me.' She further testified, 'When I fell something gave under me, jerked something--it was just as quick as lightning.' The plaintiff further testified that as far as she remembered, she was holding that right pole, she was holding to that on the occasion when she was thrown from the bus. She further testified that after she got up out of the street she was sick at her stomach and was nauseated and then went to the school building.

On cross examination the plaintiff further testified that as far as she knew the bus had stopped before she got up out of her seat to get off the bus and that the bus was stopped as she proceeded toward the front door. She further testified that she did not step down to the second step from the floor of the bus when she fell. 'I was in the act of stepping.' She also testified that so far as she remembered she had hold of a rail there with her right hand. She did not remember whether she stepped down with the right foot or with the left foot and that she was in the act of stepping off with the right or left foot to the second step when she fell. Plaintiff further testified that in her own mind she would not be certain that the bus moved on that occasion but she thought it did. She testified that she was wearing a type of shoe that is described as a walking shoe.

R. B. King, a witness for the defendant, testified substantially as follows. He was employed by the defendant as an inspector and that there was an occasion when he was called upon to inspect trolley bus No. 211 in the year 1957 and that he made an inspection of that bus on January 24, 1957. The witness further testified that he checked the doors, front entrance, platform, control locking devices and other parts of the bus and found them to be in 'good condition', that he had been engaged in this business for a number of years and explained the details of the work of the particular mechanisms with which the bus was allegedly equipped.

Betty Joy Gable, a witness for the defendant, testified substantially as follows: That she was a prospective passenger on this particular bus at Elizabeth Station at the time of the alleged accident. She identified pictures representing the scene at Elizabeth Station and where she was standing and other physical aspects of the pictures. She testified further that the bus did not move from the time if came up there and stopped until the time Mrs. Holmes was beginning to alight. She testified further that the bus did not jerk, slide forward, sideways or make any other movement whatsoever.

James Houston Little, a witness for the defendant, testified substantially as follows: That he was employed by the defendant as a bus driver and was the operator of the trolley bus involved in this accident on January 23, 1957. He identified defendant's Exhibit No. 10 as a picture of the bus from the inside looking downward to the ground, showing two steps leading outward from the bus. The witness further testified with reference to the operation of the bus at various locations on the morning of the accident and prior to the accident and the procedure followed in testing the bus before it was taken out in the morning. Witness further testified that he had made numerous stops that morning prior to the accident and that he had found nothing about the bus which was in improper operating order. He further testified with reference to stopping at Elizabeth Station just prior to the accident and the procedure followed there with reference to opening the doors for the discharge of passengers. The witness testified that he heard the 'commotion' of the plaintiff falling from the bus, 'heard an exclamation' and looked and the plaintiff was in the process of falling out the door off the bottom step, that plaintiff then complained of being nauseated and was carried over to a waiting bench where she was seated and then she was assisted up and was walked around a little bit. Witness further testified that on that occasion the bus did not move in any direction, forward, backward, sideways or...