Parker v. Birmingham Elec. Co.

• Decision Date: 24 November 1950
• Docket Number: 6 Div. 995
• Citation: 48 So.2d 873,254 Ala. 488
• Parties: PARKER v. BIRMINGHAM ELECTRIC CO.
• Court: Alabama Supreme Court

Page 873

48 So.2d 873

254 Ala. 488

PARKER v. BIRMINGHAM ELECTRIC CO.

6 Div. 995.

Supreme Court of Alabama.

Nov. 24, 1950.

Taylor, Higgins, Windham & Perdue, of Birmingham, for appellant.

Lange, Simpson, Robinson & Somerville, of Birmingham, for appellee. Count 6 of the complaint is as follows:

'Plaintiff claims of the defendant the sum of fifty thousand dollars ($50,000.00) as damages, for that on, to-wit, August 13, 1948 the defendant was engaged in the business of operating a system of passenger motor buses between the cities of Birmingham and Bessemer in Jefferson County, Alabama as a common carrier of passengers for hire or reward; that on, to-wit, said date, plaintiff was a passenger for reward on one of the defendant's said passenger motor buses which was traveling toward Bessemer, and when said bus reached a point on, to-wit, U. S. Highway No. 11, known as, to-wit, the Super Highway, at a point near the WJLD Radio Station and approximately eight-tenths of a mile from said City of Bessemer, and at a place where there was no intersection of streets, avenues or highways and on the right hand side of said Super Highway, the said bus was stopped for plaintiff to alight therefrom; that when plaintiff stepped from said bus to the ground by the door of said bus, it was dark and raining, and plaintiff, standing on the ground by the bus, could not see traffic approaching from an easterly direction toward Bessemer on said highway; that the said highway at said time and place was a four-lane super highway and was muchly used day and night by motor vehicles traveling both eastwardly and westwardly between said cities of Birmingham and Bessemer, and upon said occasion said highway at the point where plaintiff was caused to alight, was highly dangerous to pedestrians, all of which was known to said operator of defendant's said bus at said time and place. And plaintiff avers that when she alighted from said bus, as aforesaid, she stood in a position which was in close proximity to the projected path of travel of said bus in a forward direction, and the operator of said bus, acting within the line and scope of his employment as a servant, agent or employee of the defendant, with knowledge that plaintiff, at the point where she alighted from the bus, could not see traffic approaching from the east on said highway, negligently signaled or negligently directed plaintiff to cross said highway in front of said bus, and plaintiff relying upon said signal or direction from said bus operator, proceeded across in front of said bus and collided with another motor vehicle which was traveling in a westwardly direction on said highway and near to the side of said bus, and as a proximate consequence thereof, plaintiff was caused to sustain and did sustain the injuries and damages set forth and claimed in Count 1 of her complaint.

'And plaintiff avers that all of her said injuries and damages were caused as a proximate result of the negligence of the said servant, agent or employee of the defendant, in charge of the operation and control of said bus, acting within the line and scope of his employment as such, in negligently directing or negligently signaling plaintiff to cross in front of said bus into said motor vehicle traveling on said highway toward Bessemer.'

STAKELY, Justice.

This is an appeal from a judgment of nonsuit entered in the court below upon motion by the plaintiff because of adverse rulings of the trial court upon pleadings. The suit is for personal injuries and damages sustained by the plaintiff as a proximate result of alleged negligence on the part of the defendant or the defendant's servant, agent or employee acting within the line and scope of his employment.

The original complaint contained three counts designated as counts 1, 2 and 3. Demurrers to these counts respectively were sustained by the court with leave of the court to plaintiff to amend the complaint by adding counts 4, 5, 6 and 7 to which demurrers were filed. The court thereupon sustained the demurrers to counts 4, 5, 6 and 7.

On account of the aforesaid adverse rulings the plaintiff moved the court to enter a judgment of nonsuit as aforesaid. The motion was granted by the court and a judgment was rendered discharging the defendant and rendering judgment against the appellant. The purpose of this appeal is to review the action of the trial court in sustaining demurrers to counts 6, 7 and 3, these being the rulings which are here assigned as error.

We think that the case can be understood by a discussion of the allegations of count 6 although there is some variation from these allegations in counts 7 and 3, which we will hereinafter point out. Although count 6 will appear in the report of the case, we summarize the averments of this count as follows. After averring that defendant was engaged in the business of common carrier of passengers by motor bus and that plaintiff was a passenger for a reward on one of the defendant's motor busses, it is alleged that the bus was stopped at a certain point in order to permit plaintiff to alight therefrom. The conditions existing at the point where the bus was stopped and where plaintiff was invited and permitted to alight are described in the count by appropriate averments as (1) it was dark and it was raining, (2) after plaintiff alighted her position and the position of the bus was such that she could not see traffic approaching along the public highway from the east, (3) the place where she alighted was beside a four-lane super highway which was muchly traveled by vehicles going in both directions both day and night and which made the highway at this point dangerous to pedestrians and (4) at the place where she alighted there was no intersecting street, avenue or highway to the right of the super highway. It is alleged that all of the foregoing facts and conditions were known to the operator of defendant's bus, acting within the line and scope of his employment as such. It is then averred that with knowledge of all the facts the bus operator negligently signaled or directed the plaintiff to proceed across the super highway in front of the bus. It is then alleged that plaintiff relied upon the signal and direction so given to her by the operator of the bus and proceeded across the super highway. It is further averred that as she cleared the far (south) side of the bus she collided with a motor vehicle which was proceeding in a westerly direction along the super highway toward Bessemer, passing the standing bus. The count then alleges that as a proximate consequence thereof the plaintiff sustained certain injuries and damages. The count concludes with averments to the effect that all of plaintiff's injuries and damages were caused as a proximate result of the negligence of the operator of the bus while acting within the line and scope of his employment for the defendant, 'in negligently directing or negligently signalling plaintiff to cross in front of the bus into the motor vehicle traveling on the super highway toward Bessemer.'

It is true that the relation of passenger and carrier does not terminate when the passenger leaves the vehicle or carriage but continues until he has had reasonable opportunity to leave the car and the roadway of the company after the vehicle reaches the stopping place to which the passenger is entitled to be carried. Mobile Light & R. Co. v. Therrell, 205 Ala. 553, 88 So. 677; Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867. Further if there is a danger to an alighting passenger from obstructions or other sources not known to the passenger and not plainly open to his observation and of which the carrier's servant is bound to take notice, it is the duty of the latter to warn the passenger of the danger. Mobile Light & R. Co. v. Therrell, supra. Further it is negligence for the operator of a motor bus to direct an alighting passenger to proceed into a dangerous situation, known to the operator and which the alighting passenger is unable to discover on account of darkness, obstruction to view or other special circumstances. Alabama Power Co. v. Hall, supra.

A 'complaint counting upon a breach of the carrier's duty to stop at a reasonably safe and convenient place for an invited disembakation of its passengers must either charge in terms that it stopped at a place that was not reasonably safe or convenient, or else it must state facts from which that conclusion follows as a matter of law'; and if a count contains averments of fact which are equivocal and which, although tending to show that the place was not reasonably safe, do not establish an unsafe condition for alighting conclusively and as a matter of law, the count is subject to demurrer unless it contains the further averment in express terms that the place of alighting was not reasonably safe. Mobile Light & R. Co. v. Therrell, supra [205 Ala. 553, 88 So. 679].

We think it can be fairly stated that there is nothing in the count to show that the plaintiff alighted at any other point than her true destination or that the stop at which she alighted was not a regular and safe stop for passengers to alight, other than possible...