Mobile Light & R. Co. v. Thomas

Decision Date12 November 1918
Docket Number1 Div. 216
Citation16 Ala.App. 629,80 So. 693
PartiesMOBILE LIGHT & R. CO. v. THOMAS.
CourtAlabama Court of Appeals

Rehearing Denied Dec. 17, 1918

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

Action by Elijah Thomas against the Mobile Light & Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 77 So. 463; 78 So. 399.

Harry T. Smith & Caffey, of Mobile, for appellant.

Webb McAlpine & Grove, of Mobile, for appellee.

PER CURIAM.

This action was brought to recover damages for an alleged personal injury received by plaintiff as the result of a collision between a wagon he was driving and a car operated by the defendant. The collision took place at the intersection of two streets in a populous city, while plaintiff was attempting to cross the tracks of defendant company, with a wagon drawn by a horse which he was driving.

There are 16 assignments of error, as noted in the record, but many of these are not insisted upon in the brief of counsel for appellant, and hence, under the ruling of this court and of the Supreme Court, must be treated as waived. Brown v Shorter, 195 Ala. 692, 71 So. 103; Carbon Hill Co v. Cooper, 3 Ala.App. 460, 57 So. 81.

Assignment of error No. 9 is based on the court's refusal to give, at the request of the appellant, the following charge:

"The court charges the jury that if they are reasonably satisfied from the evidence that the plaintiff drove upon the track of the defendant before the car which collided with the wagon which plaintiff was driving and so near to said car that it was impossible to stop or check the car so as to avoid the collision, then the verdict must be for the defendant."

The proposition of law stated in the foregoing charge is correct, and is supported by the authorities cited in the briefs of appellant's counsel; but the law as stated in the charge is fully covered by charges numbered 11 and 14, given at the request of the appellant, and also in the oral charge of the court to the jury. It follows, therefore, that the refusal of this charge is not reversible error.

Assignment of error No. 12 is based upon the action of the court in giving charge No. 3, as requested in writing by the plaintiff, which charge is in the following language: "Gentlemen of the jury, if you believe from the evidence in this case that the motorman operating the car that struck the plaintiff saw the plaintiff on the track on which the car was running or dangerously near to it, and failed to give warning by sounding his gong or bell, such failure to so warn constitutes negligence, if you further believe that the injury would have been avoided if the warning was given."

The relative rights of travelers in public streets and street cars operated thereon have been defined as being equal, not exclusive in favor of or against either. Schneider v. Mobile Lt. & R.R. Co., 146 Ala. 344, 40 So. 761; Anniston Elec. & Gas Co. v. Rosen, 159 Ala. 202, 48 So. 801, 133 Am.St.Rep. 32. It is as much the duty of one driving on the street car track to keep a lookout in each direction for approaching cars when sufficiently near the track or upon going on the track as it is the motorman's duty to keep a lookout for him. Merrill v. Sheffield Co., 169 Ala. 243, 53 So. 219. And as was said in Anniston Elec. & Gas Co. v. Rosen, supra:

"The exercise of the common right by each must be such as not to unreasonably hinder or endanger either in the use of the street."

This necessarily imposes upon the carrier the duty to operate its cars in public streets under such speed that if persons or property be upon or dangerously near the track of the street railway, the car may be, with skilled application of stopping appliances, stopped, and injury thereto averted; but this duty is qualified to the extent that the operative of the car may assume that apparently adult persons, or property such as horses and vehicles in the control of persons apparently adult, will leave the track in time to avert injury. Anniston Elec. & Gas Co. v. Rosen, supra. After danger to persons in close proximity to the track or upon the track becomes apparent, it is the duty of the motorman to use such means as are in his power to avert injury. If the person on the track and in danger is not aware of the approach of the car, and by a sounding of the gong his attention may be so attracted and thus he may save himself by getting out of the way, or if the danger is apparent, the motorman may use his appliances to stop the car to prevent the injury. But in the instant case the evidence is without conflict that the plaintiff saw the car approaching, knew it was coming at a rapid rate of speed, and...

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6 cases
  • Hamilton v. Browning
    • United States
    • Alabama Supreme Court
    • March 10, 1952
    ...the pleadings and evidence in this case, the trial court did not err in giving appellee's requested Charge 5. See Mobile Light & R. Co. v. Thomas, 16 Ala.App. 629, 80 So. 693. Appellee testified that she still owed Reese Drug Company the sum of $76.15 for medicine. The unitemized bill was i......
  • Matheny v. Petersen
    • United States
    • Alabama Supreme Court
    • April 16, 1964
    ...164 Ala. 216, 51 So. 419. This charge is the same as charge 1 which was given for the plaintiff and approved in Mobile Light & R. Co. v. Thomas, 16 Ala.App. 629, 80 So. 693. Plaintiff's Charge Plaintiff's given Charge 7 is the same as plaintiff's given Charge 1, which was approved in Alabam......
  • National Life & Accident Ins. Co. v. Hanner
    • United States
    • Alabama Court of Appeals
    • November 14, 1922
    ... ... We cite ... the following pronouncement in regard thereto from the case ... of Mobile Light & R. R. Co. v. Thomas, 16 Ala. App ... 629, 630, 80 So. 693: ... The ... rule is ... ...
  • Mobile Light & R. Co. v. R.O. Harris Grocery Co.
    • United States
    • Alabama Court of Appeals
    • February 10, 1920
    ... ... exceeding 15 miles per hour, is not an unreasonable ... regulation. 25 R.C.L. pp. 1181, 1182. While the evidence is ... slight, still, under our decision, there is sufficient ... evidence in the case to make this a jury question. Mobile ... L. & R. Co. v. Thomas, 16 Ala.App. 629, 80 So. 693 ... The ... basis for the eleventh assignment of error, was the refusal ... of the trial court to give the following written charge at ... the request of the defendant: ... "The court charges the jury that the motorman in charge ... of an electric car, ... ...
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