Montgomery Light & Traction Co. v. Devinney

• Decision Date: 31 May 1917
• Docket Number: 3 Div. 286
• Citation: 75 So. 883,200 Ala. 135
• Parties: MONTGOMERY LIGHT & TRACTION CO. v. DEVINNEY.
• Court: Alabama Supreme Court

75 So. 883

200 Ala. 135

MONTGOMERY LIGHT & TRACTION CO. v. DEVINNEY.

3 Div. 286

Supreme Court of Alabama

May 31, 1917

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

Action by Morgan Devinney against the Montgomery Light & Traction Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Acts 1911, p 450, § 6. Affirmed.

Rushton Williams & Crenshaw, of Montgomery, for appellant.

L.A Sanderson, of Montgomery, for appellee.

GARDNER J.

Plaintiff (appellee in the court below) was a passenger on one of the street cars of the appellant in the city of Montgomery, and received injuries from a fall from the running board of the car, for which he recovered damages, and hence this appeal.

The car was what is known as a summer car, the seats running all the way across the same, with the running board on the side, on which passengers stepped in going upon the car and in alighting therefrom. Plaintiff insists that his destination was Whitman street, which was about 90 feet below where he fell, and that he requested the conductor to let him off at that corner, and the conductor had rung the bell, and the car was slowing down, that he stepped to the running board to be ready to get off when the car reached the corner, and that as he put his weight on the handle hold to step to the running board the handle hold broke and threw him to the curb. The handle hold is probably three feet and a half long, and he states that it broke completely off, and that he knew nothing about the defective condition of such handle hold at the time. The plaintiff was on his way home when the accident occurred. There were eyewitnesses to the accident corroborative of the theory of the plaintiff.

Defendant insisted, and offered some evidence in support thereof, that the plaintiff walked to the running board of the car for the purpose of jumping off the car before it had stopped, and in doing so threw too much weight against the handle hold causing it to break. The defendant then offered to show that plaintiff had on previous occasions jumped off the car at that point, and in fact was accustomed to jumping off there, offering such testimony upon the theory that it would tend to show the intention of the plaintiff at the time he arose from his seat and went to the running board of the car. Objection to this testimony was sustained, and defendant duly excepted.

This presents the question of prime importance on this appeal. The trial court submitted the question of contributory negligence on the part of plaintiff to the jury for determination, and it is not insisted that under the circumstances of this case the question of contributory negligence was not one for the jury. Watkins v. Elec. Co., 120 Ala. 147, 24 So. 392, 43 L.R.A. 297; Armstrong v. Montgomery St. Ry., 123 Ala. 233, 26 So. 349.

The question of admissibility of the testimony as to the habits or previous custom of a person injured in a suit of this character where negligence is sought to be established has given rise to much discussion as well as contrariety of opinion. While the question seems never to have been directly determined by this court, yet we are of the opinion that the following authorities from this state indicate a leaning against the admissibility of such testimony in cases of this character: Warden v. L. & N.R.R. Co., 94 Ala. 277, 10 So. 276, 14 L.R.A. 552; Glass v. Memphis, etc., R.R. Co., 94 Ala. 581, 10 So. 215; B.R.L. & P. Co. v. Selhorst, 165 Ala. 475, 51 So. 568; M. & C.R.R. Co. v. Graham, 94 Ala. 545, 10 So. 283. See, also, in this connection, Blackwell v. Hamilton, 47 Ala. 470.

Some of the authorities holding the evidence admissible confine the conclusion to those cases where there were no eyewitnesses to the accident, while others make no mention of this distinction, holding the evidence generally admissible, and still others holding the evidence inadmissible without making mention as to whether or not there were eyewitnesses. Among the latter class may be cited the cases of Peoria & Pekin Union Ry. Co. v. Clayberg, 107 Ill. 644; L. & N.R.R. Co. v. McClish, 115 F. 268, 53 C.C.A. 60.

The following cases represent the view that the evidence is admissible, and make no distinction as to whether or not there were eyewitnesses to the accident: Pittsburgh, etc., Co. v. McNeil (Ind.App.) 66 N.E. 777; Preston v. Hannibal & St. J.R. Co., 132 Mo. 111, 33 S.W. 783.

The authorities having bearing upon this question may be found in the note to the case of Zucker, Adm'r, v. Whitridge, Receiver, 41 L.R.A. (N.S.) 683. The Zucker Case is from the Court of Appeals of New York, and a question of very similar character to that here involved was there treated in a very carefully prepared opinion. The language therein found so nearly accords with the conclusion we have here reached that we take therefrom the following quotation, approving the same as applicable to the case here under review:

"The weight

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