Jefferson v. Birmingham Railway & Electric Co.

• Decision Date: 17 June 1897
• Citation: Jefferson v. Birmingham Railway & Electric Co., 22 So. 546, 116 Ala. 294 (Ala. 1897)
• Parties: JEFFERSON v. BIRMINGHAM RAILWAY & ELECTRIC CO.
• Court: Alabama Supreme Court

22 So. 546

116 Ala. 294

JEFFERSON v. BIRMINGHAM RAILWAY & ELECTRIC CO.

Supreme Court of Alabama

June 17, 1897

Appeal from city court of Birmingham.

Action by Johnson Jefferson, a minor, by his next friend, against the Birmingham Railway & Electric Company for personal injuries caused by defendant's negligence.From a judgment in favor of defendant on plaintiff's failure to plead further after a demurrer to the complaint was sustained, plaintiff appeals.Affirmed.

The complaint, as amended, contained five counts, which were as follows: "The plaintiff claims of the defendant twenty-five thousand dollars as damages, for that heretofore, on, to wit.October 9, 1896, defendant was operating and controlling a certain train composed of a steam locomotive engine, known as a 'dummy,' and certain cars; that on said day said engine and cars were being moved by defendant over and along a certain street or streets of Bessemer, Alabama, at a low rate of speed, and occasionally coming to a stop; that the track upon which said train was being operated as aforesaid was upon a grade with the said street or streets; that said cars moved, stopped and operated as aforesaid, were attractive to children and would tend naturally to cause children to desire to get upon them; that said cars ran and operated upon said streets in the manner aforesaid were highly dangerous to children old enough to get upon them and too young to appreciate the danger, unless said cars were properly attended or guarded; that it became the duty of defendant operating said cars as aforesaid, through its servants or agents, to properly attend or guard said cars while the same were being operated as aforesaid, but disregarding said duty, defendant, through its servants or agents negligently failed to have a conductor upon said cars at said time or otherwise to properly attend or guard said cars while same were being operated as aforesaid and in consequence thereof plaintiff, who was a boy under the age of seven years, to wit, of the age of five years, got upon one of said cars and was thrown or fell therefrom and was run upon by one of said cars and was so lacerated, mangled and bruised that he lost one of his legs, and was crippled and disfigured for life, and was rendered, for life, less able to work and earn money, and was caused to suffer great mental and physical pain.

"Second Count.Plaintiff claims of defendant the further sum of twenty-five thousand dollars as damages, for that heretofore to wit, on the 9th day of October, 1896, defendant caused certain small cars to be operated by means of a small locomotive known as a 'dummy,' upon a certain public street or streets of Bessemer, Alabama, without sufficient precautions being taken to prevent children getting upon them; that it was highly dangerous for children to be upon said cars unless said children were properly attended watched or guarded to prevent their falling or being thrown from said cars; that said cars operated as aforesaid, would naturally attract children to get upon them and children would likely get upon them unless proper precautions were used to prevent; that plaintiff who was a boy under the age of seven years, to wit, of the age of five years, was attracted to get upon said cars by the natural instincts of childhood and got upon one of said cars by reason thereof and it then became and was the duty of defendant to use due care to prevent plaintiff from falling or being thrown from said car, but defendant negligently failed to perform said duty and as a proximate consequence of said failure plaintiff fell or was thrown from said car and suffered the injuries and damage set out in the first count of the complaint.

"Third Count.Plaintiff claims of defendant the further sum of twenty-five thousand dollars as damages for that heretofore to wit, on the 9th day of October, 1896, defendant was running and operating, over and along its tracks upon the streets of Bessemer, Alabama, a certain train composed of a steam locomotive engine, known as a 'dummy engine,' and one or more cars; that defendant, through its servants or agents, negligently caused or allowed plaintiff, who is a boy under the age of seven years, to wit, of the age of five years, to get upon one of the said cars without any guardian or other proper attendant and in consequence thereof plaintiff fell from said car and was run over by one of said cars and suffered the injuries and damage set out in the first count of the complaint.

"Fourth Count.Plaintiff claims of defendant the further sum of twenty-five thousand dollars as damages for that, heretofore to wit, on the 9th day of October, 1896, defendant was operating and running a dummy line, among other places, upon certain streets of Bessemer, Alabama; that on said day plaintiff who was a boy under the age of seven years, to wit, of the age of five years, got upon one of the cars of said dummy line and defendant, through its servant or agents, recklessly and wantonly or intentionally caused plaintiff to leave said car while same was in motion, and, in consequence thereof, plaintiff suffered the injuries and damages set out in the first count of the complaint.All to plaintiff's damage twenty-five thousand dollars, wherefore he sues.

"Fifth Count.Plaintiff claims of defendant the further sum of twenty-five thousand dollars as damages for that, heretofore on, to wit, October 9, 1896, defendant was operating and controlling a certain train composed of a small steam locomotive engine and certain small cars upon a certain public street or streets of Bessemer, Jefferson county, Alabama, without any one upon said cars, and without sufficient precautions being taken to prevent children getting upon them; that it was highly dangerous for children to be upon said cars, unless said children were properly attended, watched or guarded, to prevent their falling or being thrown from said cars; that said cars operated as aforesaid, were highly attractive to children; that plaintiff who was a boy under seven years of age, to wit, of the age of five years, was attracted to get upon said cars by the natural instincts of childhood, and got upon one of said cars on a place thereon highly dangerous to him, without any attendant or guardian, and defendant knew or could by the exercise of due care have known that plaintiff was upon said cars in said dangerous place without any attendant or guardian, and defendant negligently failed to take any proper care or precaution to prevent injury to plaintiff, but ran said engine and cars without any such precaution and in consequence thereof plaintiff...