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

• Decision Date: 31 May 1917
• Docket Number: 6 Div. 556
• Citation: 75 So. 996,200 Ala. 238
• Parties: KILGORE v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

75 So. 996

200 Ala. 238

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

6 Div. 556

Supreme Court of Alabama

May 31, 1917

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

Action by Katherine Kilgore against the Birmingham Railway, Light &amp Power Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Charles A. Calhoun and John T. Glover, both of Birmingham, for appellant.

Tillman Bradley & Morrow and L.C. Leadbeater, all of Birmingham, for appellee.

McCLELLAN J.

Count A of the amended complaint was this:

"Count A. Plaintiff, who is a minor and sues by her next friend, W.C. Kilgore, claims of the defendant the sum of $5,000 as damages, for that heretofore, to wit, on the 12th day of March, 1916, defendant was operating a street car line along Eleventh Avenue South, in the city of Birmingham Jefferson county, Alabama, known as the Avenue B Loop Line and plaintiff was attempting to cross Eleventh avenue at the intersection of Sixteenth street, when the servant or agent of the defendant in charge of a motor car on said Avenue B Loop Line, in approaching Sixteenth street from the west, threw a glaring electric headlight east along said street, so that the plaintiff was blinded by said headlight, and a jitney bus in the charge and control of one Curtis Gordon, coming along Eleventh avenue from the east and approaching Sixteenth street at the same time struck plaintiff, and her right arm and right leg were badly sprained, and she was severely bruised in many places on her body and limbs, and plaintiff was made to suffer great mental and physical pain and anguish in consequence of her said injuries.

"Plaintiff avers that her said injuries were proximately caused by reason of negligence of the defendant in this: That the servant or agent of the defendant, having the charge and control of said motor car, while acting in the line and scope of his employment as such, knowing that a powerful electric headlight on the front of said electric motor car [which was approaching] along said street or public highway which would likely or probably blind pedestrians and automobile drivers passing along said highway, so that they could not see, negligently threw said electric headlight on and along said highway just as plaintiff was crossing said street and said jitney bus was approaching her, and so blinded her and the said Curtis Gordon, the driver of said bus, that neither saw the other, and she was struck by said automobile as aforesaid as a direct and proximate consequence of said negligent act of defendant's said servant or agent at said time and place."

The words inclosed in brackets in the count appear in pencil in the transcript at that point. This is a bad practice particularly where an omission has occurred that is not self-correcting. The court, in the absence of agreement of counsel or effected correction of the transcript through certiorari, can properly consider only the transcript certified by the clerk, except in those cases where the imperfection is clerical merely. In this instance, the bracketed words, whether they were in fact in count A as filed or not, makes no difference in the factors constituting the issues of law raised by the demurrer and to be reviewed on this appeal. It may be noted, by the way, as it were, that the respective postures of the plaintiff, the jitney bus, and the defendant's street car, as they were respectively related just before and at the time the jitney ran against the plaintiff, were such that plaintiff, a pedestrian, was moving at right angles to the rays of light cast by the headlight of the street car, and was, hence, not facing the headlight described in the count, and that the jitney driver was operating his bus toward, facing the rays of light cast by the headlight of the street car. It is manifest from these relative situations that plaintiff could not have been "blinded" by the rays of the headlight of the street car, so as to have prevented the plaintiff's seeing the approaching jitney; since if the plaintiff had looked toward the east from which direction...