Schneider v. Mobile Light & R. Co.

• Decision Date: 28 April 1906
• Citation: 40 So. 761,146 Ala. 344
• Parties: SCHNEIDER v. MOBILE LIGHT & R. CO.
• Court: Alabama Supreme Court

40 So. 761

146 Ala. 344

SCHNEIDER v. MOBILE LIGHT & R. CO.

Supreme Court of Alabama

April 28, 1906

Appeal from Circuit Court, Mobile County; William S. Anderson Judge.

"To be officially reported."

Action by Hannah Schneider, as administratrix, etc., against the Mobile Light & Railroad Company.From a judgment in favor of defendant, plaintiff appeals.Affirmed.

R. H. &amp N. R. Clarke, for appellant.

Gregory L. & H. T. Smith, for appellee.

DENSON J.

This action is brought to recover damages for the death of the plaintiff's intestate, who was struck and killed by one of defendant's electric trolley cars while passing along Government street, in the city of Mobile, on the 3d day of June, 1902.The trial was had on the first count and the general issue, plea A and the replication to plea A, plea E and the replication to plea E, and a further plea filed April 22, 1904; upon the second count, the general issue and plea A, and the replication thereto, plea E and pleas, B, C, and D; upon the count numbered 2 1/2 as last amended, the general issue, and plea B; upon the third count as last amended, the general issue, plea A and the replication thereto, and further plea filed April 22, 1904; and upon the fourth count as last amended, plea of the general issue, plea A and the replication thereto, plea E and the replication thereto, and on the further plea filed April 22, 1904.At the conclusion of the plaintiff's evidence the court on motion of the defendant excluded all the evidence on the ground that it did not make a prima facie case for recovery against the defendant.The court then, at the request of the defendant in writing, charged the jury that, "all the evidence having been excluded, it is the duty of the jury to find a verdict for the defendant."A verdict was accordingly rendered for the defendant, and from a judgment rendered on the verdict this appeal was taken by the plaintiff.

The only assignments of error that are insisted on in the brief and argument of counsel for the appellant are those which relate to the rulings of the court excluding the evidence and giving the affirmative charge.The discussion here will be confined to the assignments of error insisted on.The evidence shows that Government street, in the city of Mobile is a public street; that the defendant's street railway is embedded in said street, so that it became a part of the street.On this railway the defendant, on the 3d day of June, 1902, was operating one of its electric trolley cars, and about 1 o'clock p. m. of that day the plaintiff's intestate was run upon and killed by said car, the car being designated as No. 45.The car, in charge of the conductor and motorman, turned into Government street on the corner of Royalty and Government streets, and was proceeding along Government street when the plaintiff's intestate was killed at a point between Dearborn and Wilkinson streets.The deceased was riding in a buggy with one Burger.The buggy was being drawn by a horse.Burger was driving and deceased was sitting on the seat with him, to his left.The buggy was being driven in the car track ahead of the car; the car following the buggy.

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