Appeal
from city court of Birmingham, H. A. SHARPE, Judge.
Action
by Martha M. Calderwood against the North Birmingham Street
Railroad Company. The court, at plaintiff's request, gave
the following charges: "(2) I charge you that
contributory negligence on the part of the plaintiff, to
avail the defendant as a defense to this action, must be the
proximate cause of the injury, and, if it is not the
proximate cause of the injury, it cannot be invoked as a
defense. (3) That the burden of proof establishing
contributory negligence rests on the defendant. (4) The court
charges the jury that if they believe from the testimony of
the witnesses in this case that on the 2d day of October
1887, the plaintiff was a passenger on the train of the
defendant's dummy line, running from North Birmingham to
Nineteenth street, in the city of Birmingham, down First
avenue; and if said train stopped on First avenue, near
Twentieth street, from the purpose of lettering off
passengers, among whom was the plaintiff, and said testimony
leaves it uncertain on which side of the Twentieth street
east or west, the train stopped,-then, in the absence of
proof to the contrary, the jury would have the right to infer
and indulge the presumption that the train did stop on that
side of Twentieth street, on First avenue, where it was
required by the ordinance of the city and the rules of the
company to stop, and not on that side of the Twentieth street
where it was forbidden to stop. (5) The court charges the
jury that if they believe from the evidence that the
defendant was, on the 2d day of October, 1887, a passenger on
the dummy line of the defendant, running from North
Birmingham to the Nineteenth street, in the city of
Birmingham, and that the train came to a full stop on First
avenue, near Twentieth street, and on the west side thereon
and that this was the place where the said train usually
stops for letting off passengers, and that passengers on said
train, among whom was the plaintiff, desired to get off, then
it was the duty of the defendant to stop its train, at that
time and place, a sufficient length of time to allow the
passengers to alight or get off of said train; and if the
jury believe from the evidence that this plaintiff attempted
to get off of said train when it came to a stop, and started
immediately to get off of said train, and continued with due
and reasonable care to get off after she started, and
defendant moved forward its train suddenly, without allowing
sufficient time for her to get off, and threw the plaintiff
to the ground or on the street with such force as to cause a
severe and painful injury to her hip and thigh, without fault
or negligence on her part, then this is an act of negligence
on the part of the defendant which will sustain an action
and the court further charges the jury that if they further
believe from the evidence that, by reason of the negligence
of the defendant by thus moving forward its train, and
without fault or negligence on her part, the plaintiff
received a severe and painful injury in her hip and thigh
and has suffered great mental and physical pain, and that
said injury is permanent, and that she has suffered great
mental and physical pain as the proximate cause thereof, then
they may find for the plaintiff for such amount of damages as
the proof may show she ought to receive."
The
court refused defendant's request to charge, as follows
"(1) If the jury believe the evidence in this case, they
must find for the defendant, the North Birmingham Street
Railroad Company. (2) If the jury believe from the evidence
in this case that the plaintiff, Mrs. Calderwood, on the 2d
October, 1887, on her return from North Birmingham on the
defendant's train, attempted to leave said train on the
east side of Twentieth street, in the city of Birmingham,
without giving notice to the defendant's conductor in
charge of said train, then they must find for the defendant,
unless the proof further shows that such conductor, or some
other employe of the defendant, knew of her purpose to leave
said train in time to warn her not to make the attempt, and
failed to give such warning. (3) That there is no evidence
before the jury showing, or tending to show, any negligence,
either in the defendant, or in any of its employes or
servants, which caused or contributed to the injuries of
which the plaintiff complains; and the jury must therefore
find for the defendant in this case, without regard to the
hurts, injuries, or sufferings of the plaintiff. (4) That
every person of mature years is bound to know the law, and
the jury, in the consideration of this case, must consider
the plaintiff, Mrs. Calderwood, as having known, on the 2d
October, 1887, the laws of the city of Birmingham fixing the
stations on street railroads where said railroads were
required to receive and deliver passengers, and prohibiting
them from stopping elsewhere for that purpose; and if the
evidence satisfies the jury that the defendant's train,
on which the plaintiff was riding on her return from North
Birmingham on the 2d October, 1887, was forbidden by law to
stop on the east side of Twentieth street to receive or
deliver passengers, and that the plaintiff, Mrs. Calderwood,
attempted to leave said train on the east side of said
Twentieth street, they must find for the defendant in this
case, unless the proof further shows to the jury that the
plaintiff had, before attempting to leave said train, given
notice to the conductor on said train, or some other servant
of the defendant on said train, plainly and distinctly, of
her purpose to leave said train on the east side of Twentieth
street, and that said conductor or other servant of the
defendant knew she was about to leave the train at the time
she attempted to leave it, in time to prevent her being
injured in so attempting to leave said train, and negligently
failed to take steps to prevent such injury; and the mere
pulling of the conductor's signal bell-cord, or what was
supposed by the plaintiff to be such bell-cord, by the
plaintiff, or some other passenger, without the knowledge or
consent of the conductor on said train, would not be such
notice of the plaintiff's purpose to leave said train,
either to the conductor or any other servant of the defendant
on said train. (5) That the defendant, the North Birmingham
Street Railroad Company, had the right, and it was its duty,
to make and enforce all reasonable rules and regulations for
the safe running of its trains, and the safe transportation
of its passengers; and if the jury believe from the evidence
that one of these rules and regulations forbade passengers to
pull the conductor's signal bell-cord, and that this was
a reasonable and proper regulation, and that the defendant
and its servants exercised reasonable and proper diligence to
bring it to the knowledge of the public, and of passengers on
its trains, including ...
