Montgomery Light & Traction Co. v. Riverside Co.

• Citation: 8 Ala.App. 509,62 So. 311
• Parties: MONTGOMERY LIGHT & TRACTION CO. v. RIVERSIDE CO.
• Decision Date: 15 April 1913
• Court: Alabama Court of Appeals

62 So. 311

8 Ala.App. 509

MONTGOMERY LIGHT & TRACTION CO. v. RIVERSIDE CO.

Court of Appeals of Alabama

April 15, 1913

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by the Riverside Company against the Montgomery Light &amp Traction Company for damages done to wagon and mules. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A portion of the oral charge made the basis of the first assignment of error is as follows: "Now, if you should find from a fair consideration of all this evidence that this car was going at a greater rate of speed than ten miles an hour, then it will reasonably follow that the defendant was violating the law upon that subject; and, if the plaintiff's property was injured while the defendant was violating the law, then the burden is upon the defendant to show that it was not negligent."

The second assignment is as follows: "Now, I think you understand that. For instance, if the plaintiff shows that defendant was violating the law, and he shows you that in that violation of the law the plaintiff's property was injured, then the burden is upon the defendant to show you that it was not caused from that fact."

Rushton Williams & Crenshaw, of Montgomery, for appellant.

Hill Hill, Whiting & Stern, of Montgomery, for appellee.

THOMAS J.

The plaintiff in the court below, appellee here, brought suit and obtained judgment against the appellant, a street car company, for the alleged negligence of the latter's servants or agents in the operation of a street car, whereby it was claimed that the defendant's car was run against a milk wagon and the two mules drawing it, the property of plaintiff, in charge of one of its drivers at the time. The accident occurred at about 6 o'clock in the morning during the winter season and at a street crossing --the intersection at right angles of Church and Catoma streets, the one running east and west and the other north and south. The car was going west along the defendant company's track on the former street, and the milk wagon was being drawn by said mules south along the latter street when, after starting across and while on defendant company's track, it was struck by the approaching car, whence resulted the injury and damage to the mules and wagon complained of.

It was early in the morning, as said, and the day was cloudy, damp, and foggy. The wagon was an inclosed one, with glass in front and glass doors on either side of the driver's seat, upon which there was at the time some mist or rain, sufficient, we judge, to dim and shorten, but not to prevent, the view. There were but two persons on the wagon, the driver, sitting on the right or west side going south, and his assistant, who sat on the left or east side, the direction from which the car came. The glass door on the driver's side was open. He testifies that he was driving slow and before going on the track he looked around west, but neither saw nor heard a car until the mules got on the track, when he then for the first time saw the car coming up the hill about half a block away east at the rate of about 25 miles an hour; that, seeing he would not be able to clear the track before the car reached him, he stopped the mules and was endeavoring to and in the act of backing them off the track, when the car struck them violently, carrying one mule some 30 feet; that no bell or gong was rung; and that the speed of the car was not slackened until after the mules were struck. The driver was corroborated by other witnesses as to the speed of the car and in other material particulars.

The plaintiff, in further proof of one of its counts, introduced in evidence, without objection, an ordinance of the city of Montgomery prohibiting under penalty the running of a street car along the streets of the city at a greater rate of speed than four miles an hour on curves, or turnouts and ten miles an hour on straight tracks, It appears that at the place of the accident the track was straight.

The evidence for the defendant tended to show that there was a headlight burning on the car, and that the car was making its first trip out for that morning; that there were no passengers aboard; and that it was in charge of a motorman who was operating it, and a conductor, who, at the time of the accident, was standing on the rear platform. They testify that the car was running at about 6 or 6 1/2 miles an hour. The motorman testified that there was rainwater on the glass in front of him on the car, and that the weather conditions were otherwise such that he could not see farther than about 30 steps ahead; that he was going uphill on a wet track, and that the shortest distance within which the car could be stopped was about 40 feet; that near the...