Mobile Light & R. Co. v. Roberts

• Decision Date: 13 May 1915
• Docket Number: 867
• Citation: 192 Ala. 486,68 So. 815
• Parties: MOBILE LIGHT & R. CO. v. ROBERTS.
• Court: Alabama Supreme Court

68 So. 815

192 Ala. 486

MOBILE LIGHT & R. CO. v. ROBERTS.

No. 867

Supreme Court of Alabama

May 13, 1915

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

Action by Mary Roberts, as administratrix, against the Mobile Light & Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

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

Lyons &amp Courtney and Stevens, McCorvey & McLeod, all of Mobile, for appellee.

McCLELLAN J.

Plaintiff's intestate, Roberts, was killed by defendant's electrically driven street car, at a point in Royal street a little north of its intersection with Madison street, in the city of Mobile. The cause of action was stated in two counts submitted to the jury, viz., the first and third counts. The former declared generally upon the negligence of defendant's motorman in the management of the street car on that occasion; and the latter count ascribed intestate's death to the failure to exercise due care and diligence to avert his injury after the motorman became aware of intestate's peril.

Aside from testimony descriptive of the character and location of wounds on the body of intestate, and a map showing the locus in quo, and some testimony tending to show that the car was driven at a high speed, there were but three witnesses examined on the trial whose testimony could have any bearing upon the controlling material issues presented by the counts mentioned. These were Ruth Wilson and Jerry Miles, introduced by the plaintiff, and Ernest Graham, the motorman, introduced by the defendant. The single contention made for appellant (defendant) is that the trial court erred in refusing to give the general affirmative charge for the defendant, upon its request.

Neither Ruth Wilson nor Jerry Miles were eyewitnesses to the injury of plaintiff's intestate. They saw the deceased before he was stricken, but not at a time when, or at a place where their views of him could be serviceable or available in describing, or in description of, the means of his injury or the conduct, omission, or misconduct of the motorman which might authorize or invite a conclusion whereby the motorman's act or omission could be characterized as negligent at any stage of the occurrence eventuating in intestate's injury and death. We shall, however, later refer to the testimony of these witnesses in respect of its bearing and effect upon the testimony of the motorman, who, on this record, is the only eyewitness to the tragedy introduced. The entire testimony in the record has been considered by, and read in the consultation of, the sitting members of the court. It will serve no good purpose to state it in detail. It will suffice to state the court's conclusions therefrom and thereupon.

In our views of the contest, under the issues tendered by the averments of the counts mentioned, not even a prima facie case of negligence on the part of the motorman--initial or subsequent, to his discovery of intestate's peril--was made by the evidence. In short, the plaintiff failed to carry the burden of proof assumed by him and necessary to establish, at least prima facie, his right to recover. He who charges negligence as the proximate cause of a wrong and injury suffered cannot prevail unless a definite, charged breach of duty, thus causing the injury, is shown by the evidence. The evidence, or inferences therefrom, or distinct presumptions raised thereby, must point, at least in its tendencies, to the breach of duty charged; for reliance upon conjecture or speculation, in respect of even prima facie support of the charge, cannot be justified. Southworth v. Shea, 131 Ala. 419, 30 So. 774; Tinney v. Central of Ga. Ry. Co., 129 Ala. 523, 30 So. 623.

The testimony of the motorman, if credited, clearly refuted any imputation to him of culpable negligence in act or omission antecedent to intestate's injury or coincident with any stage of its occurrence. In substance, he testified that Roberts, when in a place of safety and after having seen the approaching car within six or eight feet of a point on the track opposite that at which he was then safely standing, moved into danger in front of the approaching car and was hit thereby and killed. The testimony of the motorman to the stated effect was uncontradicted, unless the matters to be mentioned served to institute a conflict or a contradiction. One of these is said to be the evidential effect of the presence of wounds on the body which, it is asserted, were inflicted by the car instead of by the fall of the body against the street's surface or the rails of the track, and therefrom admitting the deduction that Roberts was differently postured with reference to the car from that the motorman's testimony assigned to him. There is nothing in the evidence wherefrom it could be concluded that these wounds were inflicted by the car's impact rather than the fall to the street. It would be a pure conjecture to assert the converse of either of those theories as from the character and location of the wounds alone. This expression in Southworth v. Shea, supra, while written in exposition of a broader subject, aptly...