Lambert v. Birmingham Electric Co.

• Decision Date: 20 May 1943
• Docket Number: 6 Div. 130.
• Citation: 244 Ala. 333,13 So.2d 579
• Parties: LAMBERT v. BIRMINGHAM ELECTRIC CO.
• Court: Alabama Supreme Court

13 So.2d 579

244 Ala. 333

LAMBERT v. BIRMINGHAM ELECTRIC CO.

6 Div. 130.

Supreme Court of Alabama

May 20, 1943

Harsh, Harsh & Hare and J. Haran Lowe, of Birmingham, for appellant.

Lange Simpson, Brantley & Robinson, of Birmingham, for appellee.

THOMAS Justice.

The appellant, plaintiff below, Miss Dora Lambert, sued the Birmingham Electric Company for damages on account of injuries received while she was alighting from a street car. Plaintiff's evidence tending to show that the doors were closed on her foot and that the car moved forward or jerked suddenly while she was still on the car but descending from the steps is conflicting, defendant's evidence tending to show that she fell after she reached the ground. Plaintiff's injuries consisted of a severe sprain of her left ankle and internal bleeding and persistent swelling. The jury found a verdict for the defendant. Motion for a new trial was overruled by the trial court.

The case was tried on the simple negligence count and a plea in short by consent including contributory negligence. The trial judge gave the general affirmative charge as to count B declaring for wantonness in operating the car from which plaintiff was alighting as a passenger.

The plaintiff Miss Dora Lambert testified that she was employed in Mansfield Hat Shop at Third Avenue and Eighteenth Street in Birmingham, Alabama, a position which required her to be constantly on her feet. That she got off from work at 6 o'clock on October 4, 1941, and boarded a street car operated by the Birmingham Electric Company as a passenger, paid her street car fare and just about the time the street car stopped at Ione Station she told the conductor she wanted to get off. The conductor was standing at the platform and the street car stopped and the doors were opened when she got to the door and the car was still. As she started to get off the street car she had one foot on the ground and the car gave a jerk and closed the door and caught her heel and jerked her back and threw her to the ground from the street car. She tried to get up, but was unable to stand and fell and struck her head against the telephone post. After plaintiff got to her destination she was carried to the hospital in an ambulance, her ankle was X-rayed and she was sent back home after the doctor had given her medicine to ease the pain. The foot began to swell and hemorrhaged. The doctor bandaged up her foot and she had to keep it elevated and had to stay in bed about three weeks with a cast upon her ankle. She had to walk on crutches for about two months, and was unable to go back to work until March 7, 1942, something like five months after she was injured. Her doctor's bill was $50 and she lost her wages of $15 a week for five months. She suffered pain for a long time and up until time of trial.

The plaintiff's brother W.T. Lambert and Mrs. Lambert testified they were at Ione Station at the time his sister was hurt, but were in his automobile and did not see the accident, and testified as to the condition of her ankle and her suffering as the result of the injury.

Joe Shelby, a witness for the plaintiff, testified that he was standing on the ground near where plaintiff fell; saw her get off the back end of the street car and stated he first saw her when she was on the step when she was fixing to make the next step off the street car and when she was in the motion of putting or fixing to put her foot down the street car jerked off, going forward, and she fell down by the post. He further testified that the street car conductor was about five feet from the door and he further testified that plaintiff was not hurrying off the street car, but was taking her time; that the motion of the car jerked plaintiff off.

Dr R.M. Kimbrough testified as to the nature and extent of plaintiff's injuries; diagnosed her condition as a severe sprain of the ankle which requires treatment by immobilization in a cast; further that at the time of the trial, about seven months after the accident, her foot was still swelled. He described the injury as involving torn ligaments or muscles.

Mrs W.Z. Dennis, Mrs. Gardner H. Keller and Mrs. Claude Atcheson all testified about the nature and extent of plaintiff's injury.

Lula Shelby and Kate Dowdell testified for the plaintiff that she was standing on the ground near where plaintiff was hurt and that when plaintiff got to the bottom step to step to the ground from the street car, the street car jerked forward and it threw her off. Florence Brown testified that the car jerked as plaintiff was stepping off to the ground and threw her off the car.

J.M. Moore testified for the defendant that he was running the street car No. 229 on October 4, 1941, out-bound to Ione Station where there had been an accident and a man killed; that G.E. West was the conductor with him and that he had since died. He further testified that he, the motorman, operated the front and back doors manually with a lever and by means of his mirror he could see whether passengers were clear at the back door and that there was a mirror there that night and that he saw the lady get off at a time when the door was open and the street car standing. He further testified that the lady had passed out of his mirror vision before he did anything to the car and that he had not seen anything happen to her at that time and that he closed the door himself.

On cross-examination the witness stated: "You ask me whether I know of my own personal knowledge whether she fell of [off] the street car or not, and I answer I know she didn't fall. * * *" He testified further on cross-examination that: " * * * She stepped right on the step and stepped to the ground. I watched her while she was stepping. I watched her step off the car to the ground. She was walking pretty pertly. She did not appear to be in a hurry. I didn't notice whether she had any bundles in her arms. * * * I quit look [looking] through my rear vision mirror as soon as I closed my door. I waited there until I looked down in front and seen [saw] those colored people that are here. I saw some. * * * I did not see those negroes through the rear vision mirror. I saw them the same time as I passed by. I did not see anyone pick this lady up. I quit look [looking] through my rear vision mirror as soon as I closed my door. * * * I did continue looking through the rear mirror until the doors were shut and the lady had walked off. * * *" [Brackets supplied.]

Thereupon G.A. Murphy testified for the defendant that he was on the street car on the occasion which plaintiff was hurt at or near Ione Station; that he was by the window on the back platform and that, "The lady didn't get up immediately when the street car stopped. She waited for a few seconds. Then she jumped up and said 'Let me out of here.' * * * She looked like she was awfully excited over something and I thought maybe that was what occurred there. She looked pale. She ran to the back door excited and seemed to be in a big hurry and went out the door in a lunge. The door did not close on the lady that I saw in any way. The street car did not move any while the lady was moving out through the door. After the lady got out of the car and down on the cement or cinders there, I was looking at her. She started and run right into a telephone post. * * * She was going toward the post and looking toward the street. * * * After the door was closed, I would say the car stood there several seconds before it started to leave. * * * I didn't notice anything unusual about its movements."

And on cross-examination the witness Murphy testified as follows " * * * I heard her say 'Let me off' or 'Let me out of here' and that was when she jumped off. There was no noise in the street car. You ask if there was anything that kept him from hearing that, too and I answer just all the commotion. I heard it. I hear the commission, [commotion], too. She ran. She just ran. She was in a hurry. That was Miss Lambert. She went unusually fast down the steps. She didn't slow down when she hit the steps. The door was open. I had turned around from looking out the back window. I saw her when she stepped down on the first step. I didn't see her clear the car. I saw her after she was clear of the car. The car was standing still. * * * I watched her. When she got off the street car, she came at kind of a forty-five degree angle instead of getting straight off the car. A telephone post was standing back there, back of the street car, and she had to...