Mobile Light & Railroad Co. v. Nicholas

• Decision Date: 05 March 1936
• Docket Number: 1 Div. 875
• Citation: 232 Ala. 213,167 So. 298
• Court: Alabama Supreme Court
• Parties: MOBILE LIGHT & R. CO. v. NICHOLAS.

167 So. 298

232 Ala. 213

MOBILE LIGHT & R. CO. v. NICHOLAS.

1 Div. 875

Supreme Court of Alabama

March 5, 1936

Rehearing Denied April 23, 1936

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action under the Homicide Act by Thaddeus B. Nicholas, as administrator of the estate of Thaddeus B. Nicholas, Jr. deceased, against the Mobile Light & Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Refusal of requested charges not error where fully covered by oral charges.

The following charges were given at plaintiff's request:

"2. The court charges the jury that no mistake or want of foresight, or other fault, that could be attributed to the mother of the child in question, or to the child himself, could, in the least, affect the right of the plaintiff, in this case, to recover damages, if it appears from the evidence, to the reasonable satisfaction of the jury, that the motorman, employed by the defendant to operate its car, while acting within the line and scope of his employment, negligently caused the death of the child, by his failure to keep a proper lookout ahead of the car, or by any other negligence on his part, in the operation of the car.

"3. The court charges the jury that when a motorman, who is operating an electric street car over a track, imbedded in a public highway, approaches a place where he knows that people are constantly on, or approaching said track, in dangerous proximity thereto, with a view of crossing, it is his duty to keep a vigilant lookout for such a person, and if he negligently fails to do so and thereby renders himself unable to avoid striking a child seven (7) years of age, who is then and there approaching said track, within dangerous proximity, it affords no defense whatever to his negligence, in the event that the said car does come in contact with the child, and kills him, to show that the motorman did everything possible to avoid the injury after he actually discovered the child approaching the track and within ten feet thereof.

"4. Gentlemen of the jury, the court judicially knows that a child, under seven (7) years of age, is not capable of the discretion necessary to its self-protection, and every motorman, who operates an electric street car, over a track imbedded in a public highway, is bound to take notice of this fact, and when his car is approaching a place where he knows that some child is likely to be upon the track, at that place, or to be approaching the track in dangerous proximity, he must keep his car under such control as will enable him to avoid injuring a child of that age, who may be upon or approaching the car in dangerous proximity and within the line of his vision.

"5. The court charges the jury that there can be no fault attributed, in this matter, to the child, who is alleged to have been killed, if he was not over seven (7) years of age."

"9. The court charges the jury that it is the duty of a motorman operating a street car over a track imbedded in and forming a part of a public street or highway to keep a vigilant lookout not only for people who may be upon the track ahead of his car, but also for people who may be upon the said public street or highway, approaching said street car track.

"10. The court charges the jury that when an electric street car is approaching a driveway from the property on one side of the public highway out into the highway to the street car track, in a place where many people constantly use the street car track as a part of the public highway, it is the duty of the motorman in charge of the car approaching on said track to keep a vigilant lookout for any person who may be upon that driveway and likely to go upon the track at any time."

These charges were refused to defendant:

"33. The court charges the jury that, if you are reasonably satisfied from the evidence in this case that the point of the accident was a part of the defendant's private right of way, then the defendant was under no duty to keep said place in a reasonable state of repair for the public to walk along.

"34. The court charges the jury that, if you are reasonably satisfied from the evidence in this case that the place where plaintiff's intestate was injured was a part of the private right of way of the defendant, then the court charges you that the defendant's servants and agents, operating said street car, were under no duty to plaintiff's intestate, other than to exercise reasonable and due care not to injure him after the discovery of his peril, or not to wantonly or wilfully injure him."

"43. The court charges the jury that, should you find a verdict for the plaintiff, you are further instructed that the damages you award are by way of punishment to the defendant, and, if you are reasonably satisfied from the evidence that a small amount would be just punishment under the circumstances, then you are authorized to render a verdict in a small amount.

"44. The court charges the jury that, if you should find a verdict for the plaintiff, such verdict should not exceed such amount as you are reasonably satisfied from the evidence will sufficiently punish the defendant for causing the death of plaintiff's intestate."

"48. The court charges the jury that, if you are reasonably satisfied from the evidence in this case that the plaintiff's intestate, immediately preceding the accident, was in a place of safety, and not in close proximity to the street car track, and whose conduct and appearance was such as not to indicate to a reasonably prudent person, in the exercise of ordinary care, that plaintiff's intestate would come in close proximity to the street car track, or would suddenly come to the track or car of the defendant, then the motorman operating defendant's car was under no duty to stop the street car."

"51. The court charges the jury that if you are reasonably satisfied from the evidence that plaintiff's intestate was running along the fence upon the embankment west of the track prior to the time he was injured, and that he saw and knew that the street car with which he came into contact was approaching, then it is immaterial in this case whether the motorman sounded his gong or bell or not.

"52. The court charges the jury that, where a child under the age of seven years is in a place of safety, away from the track of a street railway company, a motorman operating a street car approaching him has a right to assume that he will continue in said place of safety until he has such notice as would suggest to a reasonable and prudent motorman similarly situated that he was likely to come in close or dangerous proximity to the street car."

"54. The court instructs the jury that there was no duty resting upon defendant's motorman to slacken the speed of or stop the car merely because a person was in a safe place upon a bank off from the car track, or any safe place in the street, as the defendant's car approached. No such duty arises until the motorman sees, or, in the exercise of ordinary and reasonable care, should see, that such person so situated is about to or liable to get in the path of the approaching car, or in close or dangerous proximity thereto."

Smith & Johnston, of Mobile, for appellant.

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

KNIGHT Justice.

This is a suit by a father for the death of his minor child under the Homicide Act (Code 1923, § 5695).

The case was submitted to the jury under three counts of the complaint. Count 1, as amended, ascribed the death of plaintiff's intestate, a child under seven years of age, to a wanton wrong by an agent or servant of the defendant, while acting within the line and scope of his employment in the operation of one of defendant's street cars. Counts 2 and 5, each, charge simple negligence. In count 5 the death of plaintiff's intestate is charged to the negligent failure of defendant's agent or servant to sound the alarm, with which said car was equipped, to warn the deceased of the approach of the car. It is alleged, in this count, that the negligent failure of defendant's agent or servant to sound the alarm proximately caused the collision between the car and plaintiff's intestate, and from which collision the plaintiff's intestate received his fatal injuries.

The case was tried upon the plea of the general issue. There were verdict and judgment for plaintiff, fixing the damages at $5,000. From this judgment defendant appeals.

The defendant on March 29, 1933, and for a long time prior thereto, owned and operated a street car line from the city of Mobile, northwardly through the village of Toulminville to Pritchard, Whistler, and other points.

In the village of Toulminville, there is a public avenue called Wilson avenue. This avenue was dedicated to public use by J. Howard Wilson, the owner of the land, in 1902, by proper instrument recorded in the office of the judge of probate of Mobile county. This highway as dedicated was 60 feet wide. Thereafter, Wilson and wife, on July 25, 1905, conveyed to the defendant, to be used as a right of way for its street car track, a strip of this avenue 24 feet wide, the center line of which is the center of Wilson avenue, and upon which the defendant constructed its street car tracks. At the point where the accident occurred, the defendant maintains two lines of tracks, one for northbound and the other for southbound cars. There is some little distance between the east rail of the west track and the west rail of the east track. The whole of Wilson avenue, as originally dedicated, is used by the public constantly, whether traveling on foot or by vehicle, and the defendant's rails are imbedded in this highway.

The plaintiff's intestate, who was under the age of...