Mobile Light & R. Co. v. Bell

• Decision Date: 12 November 1907
• Citation: 153 Ala. 90,45 So. 56
• Parties: MOBILE LIGHT & R. CO. v. BELL.
• Court: Alabama Supreme Court

45 So. 56

153 Ala. 90

MOBILE LIGHT & R. CO. v. BELL.

Supreme Court of Alabama

November 12, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Robert F. Bell against the Mobile Light & Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Action for damages for injuries in being thrown from a car by a sudden jerk. The allegations of the second count of the complaint are sufficiently set forth in the opinion. The fourth ground of demurrer thereto is as follows "Because it does not appear from the said complaint that the alleged injury was the proximate cause of the act of the conductor in giving the motorman the signal to go ahead, nor does it appear from said count that the alleged sudden jerk of the car was the proximate cause of any act of negligence." The original count was filed on the 26th of July, 1905, and alleged the act of negligence to have been committed on August 1, 1904. The third count of the complaint was filed on February 28, 1906, and was a count in simple negligence, with general allegations. There was judgment for plaintiff for $2,750, from which this appeal is prosecuted.

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

J. M Foster and N. R. Clarke, for appellee.

ANDERSON J.

The negligence charged in the second count of the complaint was the act of the conductor in signaling the motorman to go ahead while the plaintiff was on the sideboard or step preparatory to alighting. The proximate cause of the injury is averred as being due to the fact that the motorman, after being so signaled, caused the car to go ahead at increased speed "with a sudden jerk." The complaint does not aver that the conductor signaled the motorman to start or increase the speed of the car with a sudden jerk. Therefore the order of the conductor, even if negligently given, is not charged as the proximate cause of the fall. On the other hand, the mere charge that the motorman increased the speed of the car with a sudden jerk does not impute negligence to him. The jerk may not have been due to the negligence of the motorman; but, if it was, it is not so charged. Moreover, there is no averment that the motorman knew of the plaintiff's position on the car when he increased the speed and caused the jerk. It is not every increase of speed or sudden jerk of a car that amounts to negligence. The conductor may have...