Montgomery St. Ry. Co. v. Shanks

• Decision Date: 15 December 1903
• Citation: 139 Ala. 489,37 So. 166
• Parties: MONTGOMERY ST. RY. CO. v. SHANKS.
• Court: Alabama Supreme Court

37 So. 166

139 Ala. 489

MONTGOMERY ST. RY. CO. v. SHANKS.

Supreme Court of Alabama

December 15, 1903

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Mrs. E. A. Shanks against the Montgomery Street Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint contained but one count, in which the plaintiff claimed $2,500 damages, and the substance of the averments of this count is sufficiently shown in the opinion. The defendant demurred to the complaint, setting up in various ways the fact that it does not set out a good cause of action. The defendant pleaded the general issue, and several special pleas setting up contributory negligence. The demurrers to pleas numbered 3, 4, and 6 were overruled, and it is therefore unnecessary to set out these pleas at length. The other special pleas were in words and figures as follows "(2) And the defendant, for further answer to said complaint, says that the plaintiff ought not to recover in this action, because she was guilty of negligence which contributed proximately to the injury to her complained of in this: that she allowed the buggy in which she was sitting with a horse attached thereto, to remain standing in the street, diagonally across the street, with the hind wheel of the buggy within a few feet of the defendant's track, so that any backward movement of the horse would put the buggy wheel directly onto the defendant's track." "(5) And the defendant, for further answer to said complaint, says that the plaintiff ought not to recover in this action, because she was guilty of negligence which contributed proximately to the injury to her complained of in this: that the horse which plaintiff was holding was afraid or skittish about the street cars, and yet plaintiff allowed said horse to remain upon the street, which was very narrow, and that the horse became frightened at the car and backed the buggy onto the track in such close proximity to the car that the motorman in charge thereof was unable to stop the car before it struck the buggy." "(7) And the defendant, for further answer to said complaint, says that the plaintiff ought not to recover in this action because she was guilty of negligence which contributed proximately to the injury to her complained of, in this: that the horse which plaintiff was holding became frightened and backed the buggy onto the track in such close proximity to defendant's approaching car that the motorman in charge of said car was unable to stop the same before it struck the buggy. (8) Because the plaintiff was guilty of negligence which proximately contributed to the injury complained of, in this: that she allowed said horse and buggy to stand or remain in dangerous proximity to the track of defendant, without having in charge thereof a competent driver, and in consequence thereof the said horse did move or back said buggy upon the track of defendant immediately in front of an approaching car, and was struck. (9) For further answer to said complaint, defendant says the plaintiff ought not to recover because the plaintiff was guilty of negligence which contributed proximately to the injury complained of, in this: that, had plaintiff urged or driven the horse forward, as she could have done, she could have avoided the injury. (10) Because plaintiff is guilty of negligence which contributed proximately to the injury complained of, in this: that plaintiff failed to use any effort to drive said horse forward and off from said track. (11) Because the plaintiff was guilty of negligence which contributed to the injury complained of, in this: that when said horse began to back said buggy towards defendant's track she failed to use the whip at her command in an endeavor to make said horse go forward, or to in any manner urge said horse to move forward and away from said track." To the second plea the plaintiff demurred upon the following grounds: "(1) It is not denied in said plea that the defendant saw the perilous condition of said horse and plaintiff, and that defendant negligently brought said car into collision with said horse and injured plaintiff. (2) It is not denied that plaintiff used every effort in her power to prevent said horse and buggy getting on the track, and it is not denied that defendant negligently brought said car into collision with said buggy and injured plaintiff. (3) It is not denied in said plea that, after defendant saw or could have seen the peril of plaintiff, the defendant negligently brought its car into collision with said buggy and injured plaintiff." To the fifth and seventh pleas plaintiff demurred upon the same grounds as interposed to the second plea, and upon the following additional grounds: "(1) It is not alleged that plaintiff knew said horse was afraid or skittish about cars. (2) It is not alleged what the motorman did, or that he attempted to do anything, to stop said car after seeing the buggy on the track." To the eighth plea the plaintiff demurred upon the following grounds: "(1) It is not shown how the lack of a competent driver contributed to plaintiff's injury. (2) It is not denied in said plea that, after defendant saw or could have seen the perilous position of plaintiff, it did or attempted to do anything to avoid the injury to plaintiff. (3) It is not denied that defendant, after seeing the plaintiff's peril, could by the use of due diligence have avoided injury to plaintiff." To the ninth and tenth pleas the plaintiff demurred upon the following grounds: "(1) The said plea does not deny that defendant, after seeing plaintiff's peril, did anything to avoid injury to her. (2) The fact that plaintiff failed to urge the horse forward did not excuse defendant for injuring her, if defendant, after seeing her peril, negligently brought said car into collision with said buggy as alleged in the complaint." To the eleventh plea the plaintiff demurred upon the same grounds of demurrer interposed to the ninth and tenth pleas, and the following additional grounds: "(2) The facts stated in said plea do not excuse the defendant from liability, if defendant, after seeing the peril of plaintiff, failed to use due diligence to prevent the injury. (3) The plea does not allege that defendant used due diligence to avoid and could not have avoided the injury by due diligence after seeing plaintiff's peril." The demurrers to each of said pleas, as above set out, were sustained, and the cause was tried upon issue joined upon the remaining pleas.

Upon the trial of the cause the evidence for the plaintiff tended to show the following facts: That plaintiff had been injured; she had received bruises back of the ear, and abrasions on head, shoulder, and arm; the lobe of her ear was almost severed; the ear had to be stitched on. These injuries required treatment. She suffered pain, and was confined to her house for at least a month. The plaintiff and Mrs. Hastings drove up to Mrs. Wilson's on the south side of Mildred street. The horse and buggy stopped alongside of and parallel to the sidewalk, with the horse's head to the west Mrs. Hastings left the plaintiff sitting in the buggy, and she was there with the reins in her lap when the defendant's car came from the west, approaching the horse and buggy. There was a switch right there. The car was running fast, and turned into the branch of the switch next to where the plaintiff was. As the car turned into the switch, the horse began to show fright and to back. The car was then more than 100 feet away. The plaintiff cried out to the motorman. Mrs. Hastings waived at the motorman and called to him to stop. The motorman made no movement to stop the car. The buggy was backed on the track while the car was 100 feet away. The car struck the buggy and stopped. The plaintiff called to the motorman twice, the first time when the car was 100 feet away. There was nothing between the buggy and the car, and nothing to prevent the motorman from seeing plaintiff's peril. When the horse backed, the plaintiff spoke to it, saying "Whoa, Beauty!" The horse backed slowly. It was 125 feet from the west end of the switch to the point of the collision. The plaintiff had her hands on the lines, which were lying loose in her lap. She did not slap the horse, nor do anything except to speak to the horse. The horse was backing several minutes before the collision. The motorman was standing on the front end of the car, looking straight forward, face towards the east. He did not apply the brakes, turn the electrical lever, or do anything else to stop the car.

The testimony for the defendant tended to show the following facts: The car, in going east, passed on the north track of the switch. The buggy was there at that time, with Mrs Shanks in it. A few minutes afterwards the car returned, going west, and passed on the south branch of the switch next to where the buggy was. One witness for the defendant swore that the car was within 10 to 15 feet of the horse when he became frightened and began to back. The horse and buggy were not standing straight up and down the street, but a little across Mildred street. The buggy backed diagonally to the point of collision. The motorman was doing his best to stop the car. He was applying the brakes. When he ran into the west end of the switch he had to set up his brakes. After the car passed the end of the switch the motorman released his brakes some, and was gradually setting them up again. The car had passed into the...