Honeycutt v. Birmingham Electric Co., 6 Div. 57.

• Decision Date: 02 June 1938
• Docket Number: 6 Div. 57.
• Citation: 236 Ala. 221,181 So. 772
• Parties: HONEYCUTT v. BIRMINGHAM ELECTRIC CO.
• Court: Alabama Supreme Court

181 So. 772

236 Ala. 221

HONEYCUTT v. BIRMINGHAM ELECTRIC CO.

6 Div. 57.

Supreme Court of Alabama

June 2, 1938

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages for personal injuries by Sarah G. Honeycutt against the Birmingham Electric Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Clifford Emond, of Birmingham, for appellant.

Lange Simpson & Brantley, of Birmingham, for appellee.

BROWN Justice.

This is an action of trespass on the case by the appellant against appellee, to recover damages for personal injuries inflicted on her person in consequence of being struck by the rear end of a street car as it turned the corner, after having made a regular stop, at the intersection of First Avenue and 20th Street in the City of Birmingham.

The case went to the jury on the issues presented by the first count of the complainant and the defendant's pleas of not guilty and contributory negligence, pleaded in short by consent.

The said first count avers, inter alia, that plaintiff claims of the defendant, "damages, for that heretofore on, to-wit the 5th day of November, 1934, plaintiff was a pedestrian along and upon a public highway in the City of Birmingham * * * and at said time and place an agent servant or employee of the defendant, acting within the line and scope of his employment as such agent, servant or employee for the defendant, ran an electric street car into upon or against plaintiff and as a proximate result thereof the plaintiff was injured," and that said injury was proximately caused by the negligence of the defendant's said agent or servant "in and about the operation and control of said electric street car." (Italics supplied.)

The evidence is without dispute that plaintiff immediately preceding her injury, had come into the city as a passenger on the Edgewood Street Car; that after she alighted therefrom at the regular stopping place, where the car stopped to allow passengers to disembark, she stood or stepped into the sweep of the rear end of the street car as it passed around the corner on its forward movement, and was injured. The plaintiff testified in respect to her movements after she disembarked, on her direct examination:

"When I did alight from the street car, I walked in the safety zone up toward the front of the street car and stood there waiting for the traffic to clear so I could cross to the southeast corner. Yes there were marks there in the street indicating what they call a safety zone. I did not walk up in that zone. I walked up pretty close to it. I do not remember whether or not I walked between the line and the street car. I did not go out across the line into the street. I walked up the side of the car." (Italics supplied.)

And on cross-examination:

"I had ridden the Edgewood car line that morning. I suppose I had ridden it enough to know. I had been getting off there at First Avenue and knew that the car turned. * * * I got off the car at the rear right hand door. I do not remember if the conductor assisted me from the car platform. There was traffic between the street car line and sidewalk over there and I was afraid of the traffic--afraid to go any further. I went up as far as the cross walk from the Webb Crawford Building to the Woodward Building. While I was walking along going in the direction of First Avenue, the street car was not moving, it was standing still. It did not move for a few minutes; I waited for a few minutes. I observed the traffic light when it changed from one color to another. When it changed to green, the traffic was passing so rapidly that I knew that I couldn't get across. The street car was not moving at that time. The traffic was moving as fast as it could, and I realized the danger--I am talking about the traffic going north on Twentieth Street. When I saw the traffic, I stayed there until I thought I could have an opportunity to cross. I was afraid of one of them striking me. I stepped back and stepped about to the middle of the distance from the traffic to the car line. I thought that I was out of danger of both, and I looked behind me and I knew the street car was standing behind me. I realized the danger I was in and placed myself like that when I saw traffic moving off to keep from being struck. I heard the street car moving behind me, I did not look around at it, it knocked me over as I continued to watch the automobiles. I was watching both of them. I thought I was in between the two and realized the danger I was in." (Italics supplied.)

It appears from the record that the court gave special charges 37 and 40 "by consent of the parties."

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