Selma Street & Suburban Ry. Co. v. Owen

• Decision Date: 18 December 1901
• Parties: SELMA STREET & SUBURBAN RY. CO. v. OWEN.
• Court: Alabama Supreme Court

31 So. 598

132 Ala. 420

SELMA STREET & SUBURBAN RY. CO. v. OWEN.

Supreme Court of Alabama

December 18, 1901 ^[1]

Action by A. M. Owen against the Selma Street & Suburban Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This was an action brought by the appellee, Mrs. A. M. Owen against the appellant, the Selma Street & Suburban Railway Company, a corporation, and sought to recover $10,000 damages for personal injuries. The complaint contained three counts. The substance of these counts, and the averments of negligence contained therein, are sufficiently shown in the opinion.

The first demurrer filed to the complaint by the defendant was based upon the ground that it did not appear from the complaint that the plaintiff, before jumping from the car informed the driver that she wished to alight from the moving car, and that it does not appear that the driver knew that the plaintiff was about to jump from the moving car when he caused the mule to quicken its pace. This demurrer was overruled. Thereupon the defendant filed a second demurrer to the complaint, upon the following grounds: "(1) It does not appear from the complaint that the injury complained of was the proximate effect of the alleged negligence of the defendant. (2) It is not alleged in the complaint that the plaintiff was in peril when she jumped from the car. (3) No facts are averred in the complaint to show that the plaintiff was in peril when she jumped from the car. (4) That it is not alleged in the complaint that the act of the driver in causing the mule to quicken its pace was a violation of its duty towards the plaintiff." This demurrer was overruled. The defendant filed several pleas. The first plea was the plea of the general issue. The second, third, and fifth pleas were as follows: "(2) And the defendant, for further answer to the complaint, says that the injuries complained of were the proximate result of plaintiff's contributory negligence." "(3) And the defendant for further answer to the complaint, says that the injuries complained of were the proximate result of plaintiff's contributory negligence, in this: that plaintiff jumped from defendant's moving car without necessity, and thereby caused the injuries complained of, which injuries could have been avoided if plaintiff had remained on the car." "(5) And the defendant, for further answer to the complaint, says that the injuries complained of were the proximate result of plaintiff's contributory negligence in this: that plaintiff jumped from defendant's moving car when she was in no danger from said engine, and when said engine was moving slowly, to wit, at the rate of four miles an hour, and was not about to run into said car." To the second plea the plaintiff demurred upon the ground that it does not definitely state in what the contributory negligence consisted. To the third plea the plaintiff demurred upon the following grounds: "(1) It does not aver that the plaintiff jumped from defendant's moving car without fear or necessity. (2) Said plea does not aver that plaintiff did not have reasonable apprehension of immediate danger, and that plaintiff was not in a state of peril or apparent peril. (3) That said plea is no answer to the complaint, in that while it avers a want of necessity on the part of the plaintiff to jump from the car, it fails to show that she jumped from the said car to avoid a peril, actual or apparent, caused by the negligence of defendant or of its servants." To the fifth plea, as originally filed, the plaintiff demurred upon the following grounds: "(1) That the plea fails to show that the plaintiff jumped from defendant's moving car when there was no danger or apparent danger from said engine. (2) The plea fails to show that the plaintiff was not in such appearance of danger as to reasonably cause such alarm to her as would justify her in jumping from said car. (3) The plea does not aver that the plaintiff did not have reasonable apprehension of immediate danger, and the plaintiff was not in a state of peril or apparent peril." These demurrers were sustained. The fifth plea was subsequently amended by inserting the words "or apparently about" just before the words "to run into said car," and, as thus amended, issue was joined upon said plea.

On the trial of the cause the evidence for the plaintiff tended to show that the defendant was operating a street car line in the city of Selma; that its cars were drawn by mules; that its track crossed the railroad track of the Western Railway of Alabama; that the plaintiff boarded one of the cars of the defendant as a passenger, and paid her fare; that while she was thus a passenger on one of the defendant's cars the driver started across the railroad crossing of the Western Railway; that the driver did not stop his car before starting over the crossing, and that just as the mule was upon the railroad track the driver turned to the plaintiff, who was in the car, and, in an excited way, said, "My God, mistus! the train is right on us;" that she jumped from her seat and looked out, and saw that the engine on the track of the Western Railway was within a few feet of the car, and thereupon she ran to the back of the car and jumped off; that, just as she started to jump off, the driver struck the mule and quickened his pace, and that the jerk caused by the mule starting faster threw the plaintiff to the ground, and her leg and arm were broken; that she suffered great pain, and was put to great expense. It was further shown that, on approaching the railroad crossing from the direction in which the car on which the plaintiff was a passenger was going, there was a wall of a warehouse, which prevented the driver from seeing the engine approaching on the railroad track. It was further shown that there was an ordinance of the city of Selma which required all engineers or drivers of street cars to bring their cars to a complete stop before going on or before driving over any railroad in the city of Selma. The evidence for the defendant tended to show that, when the street car was seen, the engine on the track of the Western Railway was 25 or 30 feet away from the street railroad track; that the steam of the engine had been cut off preparatory to letting the flagman, who was riding on the engine, alight, and that, as the engineer saw the mule attached to the street car going on the track of the railway, he immediately applied his brakes, and stopped the engine within 5 or 6 feet; that when the engine stopped it was not closer than 20 or 25 feet to the street car track.

In reference to the introduction in evidence of the ordinance of the city of Selma requiring the stopping of cars before crossing a railroad crossing of the city of Selma, the bill of exceptions contains the following recital: "The plaintiff then introduced as a witness H. H. Stewart, and he testified, in substance, as follows: 'I am city clerk of the city of Selma. I am the custodian of its records and ordinances, and it is my duty to keep them.' Here a written but unprinted book was handed to witness, and witness, continuing, said: 'This is what is called the "Ordinance Book" of the city of Selma. It is the book into which ordinances are copied. I got the book from my office. I am the keeper of the book. This book does not contain all of the city ordinances. It only contains copies of the ordinances for the period of time it purports to cover. There are other ordinances, and they are in another or other books. At the date of the ordinance in question, E. S Starr was mayor of Selma, and A. J. Goodwin was clerk of Selma.' Thereupon the plaintiff offered to read in evidence from said book what purported to be an ordinance of the city of Selma. The defendant objected to the...