Mosley v. Teche Lines, Inc., 6 Div. 758

• Decision Date: 13 February 1936
• Docket Number: 6 Div. 758
• Citation: 232 Ala. 110,166 So. 800
• Parties: MOSLEY v. TECHE LINES, Inc.
• Court: Alabama Supreme Court

166 So. 800

232 Ala. 110

MOSLEY v. TECHE LINES, Inc.

6 Div. 758

Supreme Court of Alabama

February 13, 1936

Rehearing Denied April 9, 1936

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for personal injury by C.H. Mosley against the Teche Lines, Inc. From a judgment for defendant, plaintiff appeals.

Affirmed.

Clifford Emond, of Birmingham, for appellant.

Lange Simpson & Brantley, of Birmingham, for appellee.

BOULDIN Justice.

The suit was for personal injury to a passenger. Defendant was a common carrier of passengers by motorbus.

The evidence, presented by plaintiff alone, disclosed an unusual casualty.

The motorbus was on a regular trip from Birmingham to New Orleans. Plaintiff was a passenger. It was a rainy day in February. Approaching Hattiesburg, Miss., there was a stretch of unpaved road, surfaced with gravel or chert. The road became muddy and slippery, with some pools of water in ruts or depressions.

A truck passed the motorbus going in an opposite direction. Evidence tended to show that for a distance of a city block or more it could be seen that this approaching truck was splashing water and mud to right and left. As it passed this motorbus a volume of water, mud, and grit was thrown against the motorbus, blinding the windshield. The plaintiff was riding on the left-hand side some four or five seats to the rear of the driver's seat. The windows of the bus were all closed, except the driver's window just to his left. Mud was cast through this window, struck the luggage rack on the opposite side, was deflected and thrown into the face of the plaintiff, inflicting painful injury and some impairment of the vision of the right eye.

The affirmative charge was given for defendant. Appellant insists the evidence made a case for the jury on the question of negligence of the motorman in failing to close the window to his left under all the circumstances. The evidence merely says it was "possible" for him to do so.

Common carriers of passengers are charged with the high degree of care which grows out of the contractual obligation to carry safely in so far as care, skill, and diligence can reasonably assure safety.

The degree of care imposed by law, as applicable to this case, we think accurately stated in the fourth headnote to B'ham Ry., L. & P. Co. v. Barrett, 179 Ala. 274 60 So. 262, 263 Louisville & N.R. Co. v. Bowen, 212 Ala. 690, 103 So 872; Ensley Holding Co. v. Kelley, 229 Ala. 650, 158 So. 896, 898.

The carrier is not an insurer of the safety of passengers. The burden of proof is on plaintiff to show negligence; that is to say, some act or omission disclosing a want of that degree of care above stated, or...