Mobile Light & R. Co. v. Burch

• Decision Date: 11 May 1915
• Docket Number: 141
• Citation: 12 Ala.App. 421,68 So. 509
• Court: Alabama Court of Appeals
• Parties: MOBILE LIGHT & R. CO. v. BURCH.

68 So. 509

12 Ala.App. 421

MOBILE LIGHT & R. CO. v. BURCH.

No. 141

Court of Appeals of Alabama

May 11, 1915

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Walter Burch against the Mobile Light & Railroad Company for damages for personal injuries. Judgment for plaintiff and defendant appeals. Affirmed.

The first count after alleging defendant to be a corporation operating cars by electricity over and along the public streets of the city of Mobile, and the facts showing that the track was so laid and constructed as to be and become a part of said street, alleges generally that the servants or agents of defendant acting within the line and scope of their authority so negligently conducted themselves that the car of which they were in charge ran upon or against plaintiff at or near the intersection of Dauphin and Royal streets inflicting the damages here set out. Count 3 alleges generally the negligent operation or control of said car by defendant's servants or agents while acting within the line and scope of their authority as to cause the same to negligently strike plaintiff at the places alleged in count 1, inflicting the injuries alleged in count 1. The facts appear from the opinion. Exceptions were reserved to the following portions of the oral charge:

My view of the law is that if it be a fact, as testified to by plaintiff in this case, that he never saw the car and had his back to the car, that if the motorman was aware of this fact, he was not authorized to assume that plaintiff would get out of the way. The court charges you that a violation of section 7 of the ordinance introduced in evidence by this motorman, if you believe there was a violation, if you believe that he made this crossing without having been signaled by an officer, and that there was an officer visible at the crossing, then that fact would be negligent on the part of the motorman, and if it proximately resulted in the injuries complained of in this case plaintiff would be entitled to a verdict at your hands, unless defendant has proven some one of his pleas of contributory negligence. The law is that when a motorman sees a person either upon or in dangerous proximity to the track, and that person is an adult, the motorman has the right to presume or assume that the person so situated will move out of the way, and the motorman is under no duty to stop or slow his car or give any signal of the approach of the car until he becomes aware that the person in danger does not know of the approach of the car, or is unable to get out of the way of the car, or does not intend to get out of the way of the car. As soon as either of these facts becomes apparent to the motorman, then the law charges him with the duty of using proper means to avoid the injury, or ring his bell and give notice of the car's approach. It is the duty of the motorman in the operation of his car to use due care not to injure pedestrians in the street, and this care involves the keeping of a diligent lookout, and if a person is in danger, and the motorman sees that person, or if a man is aware of the peril of another man, he is to take proper precaution to give signal of the approach of the car so that the party can get out of the way. In other words, due care is simply such care as an ordinarily prudent man running a street car would use to prevent injury to people in the street.

The charges requested by defendant were predicated upon the duty of the policeman to keep a sufficient lookout, and the fact that he stood negligently in close proximity to said track, knowing that the cars were passing over it every few minutes, thus contributing to his own injury. The other line of charges were that the motorman had the right to assume that a police officer directing traffic will step out of the way of a car in time to let the car pass, and that the motorman was under no obligation or duty to stop the car or slacken its speed until it became apparent that the policeman would not move out of its way, etc.

Gregory L. & H.T. Smith, of Mobile, for appellant.

Francis J. Inge, of Mobile, for appellee.

THOMAS, J.

The complaint contains five counts, but the appellant, who was defendant below, was given the affirmative charge as to all of them except the first and third, which declared upon simple negligence in general terms. To these, the appellant filed six pleas; one of the general issue, and the others special pleas setting up contributory negligence.

The court sustained demurrers to three of these special pleas but whether erroneously or not we need not consider, since there was certainly no injury, as the defenses set up in these pleas were practically, and to all intents and purposes, the same as were set up in the two special pleas to which the demurrer was overruled and upon which the trial was had. Smith v. Davis, 150 Ala. 106, 43 So. 729; Creola Lumber Co. v. Mills, 149 Ala. 474, 42 So. 1019; Ewart L. Co. v. Am. Cement P. Co., 9 Ala.App. 157, 62 So. 560.

The evidence for the plaintiff tended to show that at the time of the accident he was a police officer in the city of Mobile, who was at such time stationed, under orders from the municipal authorities, at the intersection of Royal and Dauphin streets for the purpose of looking after, regulating, and directing at that point, in conjunction with another officer there stationed, traffic of all kinds, to the end of preventing collisions and accidents; such point being, even on ordinary occasions, a much used and frequented crossing in the city, and more so on the occasion in question, when the President of the United States was in the city, which fact attracted to it large crowds.

The defendant has car tracks, over which...