Ricketts v. Birmingham St. Ry. Co.

• Decision Date: 23 January 1889
• Citation: 85 Ala. 600,5 So. 353
• Parties: RICKETTS v. BIRMINGHAM ST. RY. CO.
• Court: Alabama Supreme Court

5 So. 353

85 Ala. 600

RICKETTS v. BIRMINGHAM ST. RY. CO.

Supreme Court of Alabama

January 23, 1889

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by William A. Ricketts to recover damages for personal injuries inflicted while attempting to step from a street car. The testimony of plaintiff tended to show that he started from his shop with a 50-pound keg of white lead, and got on the street car, putting the keg on the front platform by the consent of the driver; that he soon stopped the car and, while removing the keg, the car suddenly started forward, struck him, and threw him on the ground, injuring him. A witness for defendant, who was a director of the Pratt Mines Street-Railway Company, another corporation, was asked "who was owning and operating the Birmingham Street Railway on the 4th of March, 1887; and answered that the Pratt Mines Railway Company was the owner of and was operating said railway at that time; and that he knew the fact from having seen the written contract of sale to said Pratt Mines Railway Company, and from having been one of the parties to said contract of sale, which was made on the 4th of February, 1887." The testimony of O. W. Underwood, a witness for plaintiff, tended to show that, after the plaintiff was injured, he met George L. Morris on the street car, who, as plaintiff's testimony tended to show, was the president of the defendant corporation on the 4th of March, 1887, and asked him "if he was still in control of said street railway; and that said Morris replied that he was, and that he would turn over the management to the new company on a certain date, which said witness did not remember." The bill of exceptions does not purport to set out all of the evidence. Plaintiff asked several charges and excepted to their refusal, but they are not shown to have been asked in writing. He also excepted to the following charges, which were given at the instance of the defendant "(1) If the jury believe from the evidence that the plaintiff was standing on the steps in front of the car, with a keg of lead in his hands, when the car started forward; and that he, without necessity, undertook to step off to the ground, while the car was in motion; and that such action on his part was not that of an ordinarily prudent man under like circumstances; and that he would not have been injured if he had remained on the steps,-then the defendant is entitled to a verdict, unless the jury further believe that the injury to the plaintiff was inflicted recklessly, wantonly, or intentionally. (2) In order to entitle the plaintiff to recover, the evidence must show that the defendant was operating the street-railway at the time of the injury to the plaintiff. (3) If the jury believe from the evidence that the defendant was not operating the street railway upon which said injury to plaintiff occurred, at the time of said injury, but that the same was operated by the Birmingham & Pratt Mines Railway Company, but its agents and servants, then the defendant is entitled to a verdict." Judgment for defendant, and plaintiff appeals.

Garrett & Underwood, for appellant.

Hewitt, Walker & Porter, for respondent.

CLOPTON J.

Appellant brings the action to recover for injuries suffered by being struck by a street car in which he had been transported as a passenger, and which he was then leaving. The complaint avers that the defendant, being a corporation incorporated under the laws of Alabama, was the owner of the street railway over which the car was being run. The defendant does not dispute having, at one time, owned and operated the street railway, but seeks to avoid responsibility by alleging that about a month previous to the injury it sold the railway to another corporation, which was operating it at the time. To establish this defense the defendant was allowed to prove by the witness Thompson, that the Pratt Mines Company was, at the time of the injury, March 4, 1887, the owner of and operating the street railway, and that he knew the fact from having seen the written contract of sale, to which he was a party, which sale was made February 4, 1887. The testimony of the witness goes beyond proof of the mere execution of the contract, to the extent that its effect was to transfer the ownership to the purchasing company, which involved the opinion of the witness as to the legal effect of the contract. Shorter v. Sheppard, 33 Ala. 648. The ownership of personal property, which may be transferred without writing, may be proved as a fact, without producing the contract of sale, though in writing, when the question is incidental or collateral. But...