Sheffield Co. v. Harris

• Decision Date: 18 December 1912
• Citation: 61 So. 88,183 Ala. 357
• Parties: SHEFFIELD CO. v. HARRIS.
• Court: Alabama Supreme Court

61 So. 88

183 Ala. 357

SHEFFIELD CO. v. HARRIS.

Supreme Court of Alabama

December 18, 1912

On Application for Rehearing, February 12, 1913

Appeal from Circuit Court, Colbert County; C.P. Almon, Judge.

Action by Bryant Harris, pro ami, against the Sheffield Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Almon Andrews & Peach, of Sheffield, for appellant.

Jos. H Nathan, of Sheffield, and Kirk, Carmichael & Rather, of Tuscumbia, for appellee.

DE GRAFFENRIED, J.

The plaintiff, Bryant Harris, was on March 28, 1909, struck by one of the Sheffield Company's street cars and suffered the loss of both of his feet. When the plaintiff received his injuries he was only five years of age, and the law, on account of his age, does not apply the doctrine of contributory negligence to him.

The plaintiff received his injuries in the town of Sheffield, at or near the point in said town where Atlanta avenue, which is 80 feet wide, crosses D street. Atlanta avenue runs north and south, and D street runs east and west. The defendant, the Sheffield Company, owns and operates a street car line on said avenue. The track is imbedded in the street and forms a part of it. The Baptist Church is situated on the corner immediately west of said avenue and immediately south of D street. Atlanta avenue is straight, and for several hundred feet north and south of the point where the Baptist Church stands the view up and down the street is unobstructed from sidewalk to sidewalk. From a point several hundred feet north of the said church on said Atlanta avenue to the point where the plaintiff received his injuries, it is slightly downgrade, and the evidence is in dispute as to whether the car which struck the plaintiff was traveling slowly, at a moderate, or at a rapid rate of speed when the plaintiff was struck.

The motorman testified that the car was, at the time the child was struck, in perfect running and working order, and that he used all means known to a skillful motorman to stop the car when he first discovered the presence of the child on the street car track, and the evidence shows, we think, with reasonable certainty, that the car was not stopped until after it had passed the point of the plaintiff's injuries about 80 feet.

It appears that the plaintiff, along with other children, had attended Sunday School that morning--the injuries were received by the plaintiff on Sunday morning--and that the two Sunday School classes which were composed of children of tender age, to one of which the plaintiff belonged, had just been dismissed ahead of the other children; that they had left the church; that some of them were standing on the sidewalk and in the street near the sidewalk next to the church: that some of them had crossed the street; and that the plaintiff had either gone partly across the street and then turned back and was going back towards the church when he was struck, or he had walked out to the east rail of the defendant's track and then turned back towards the church, but was struck before he could get off the track.

The defendant insists that the child had crossed the track several feet and walked east and away from the track, when he suddenly wheeled and ran in front of the car; that the injuries were unavoidable; and that the danger could not have been reasonably anticipated. There was evidence, however, on the part of the plaintiff, that the child left the sidewalk in front of the church and proceeded in the direction of the defendant's track, and that he never did get beyond the east rail of the track before he turned and started back towards the church.

However this may be, the child received his injuries while on the defendant's track, and the motorman, in whose plain view these children of tender years were for 400 or 500 feet before he reached the point where they were on the street testified, "I could see that there were a number of children all along there." These children, as we have already said, composed the two junior classes of the Baptist Sunday School; children who, on account of their tender age, were dismissed ahead of the rest of the school, and there is nothing in the evidence tending to show that they or any of them were attended by a nurse or other person of discretion.

As the motorman "could see that there were a number of children all along there" for a distance of several hundred feet before he reached them, he could, also, probably have seen that their sizes indicated helplessness and heedlessness, and that, in passing them, even ordinary prudence would require the exercise of great caution. The evidence of the motorman tends to show that he saw the plaintiff when he left the sidewalk in front of the church and started east across Atlanta avenue, and it also tends to show that the car was then traveling at from eight to ten miles per hour. While the motorman's testimony tended to show that the car was in good working order and that he used all the means known to a skillful motorman to stop the car when he discovered the plaintiff's peril and that he did stop the car as quickly as it could be stopped, there was other evidence in the case tending to show that a properly equipped car, at the point where the injury occurred, operated under the conditions prevailing as they were described as existing at that time by the motorman, running at a speed not greater than six miles per hour, could, by a skillful motorman, have been stopped instantly, and if traveling at a rate of speed ranging from eight to fifteen miles per hour that it could have been stopped within about 25 feet.

As this car, on the occasion named, ran about 80 feet after the child was struck, and as the motorman claims that he, even before he struck the child, did all that could have been done by a skillful motorman to stop the car, and as he claims to have actually stopped the car as quickly as it could be stopped, it was, we think, under all the circumstances as shown by the evidence, for the jury to say whether, upon the named occasion, the motorman was guilty not only of simple neglect, but, in the matter of the speed at which he permitted the car to travel to the place occupied by the plaintiff and his companions near the church, of that reckless indifference to probable consequences as amounted to wantonness. The motorman admits that he saw the plaintiff when--as he claims--he crossed the track; but he admits that after that time he lost sight of the child until after it had turned around and had started back in the direction of the track and was in dangerous proximity to it. He gives an explanation of why he lost sight of the plaintiff; but the jury may not have believed his explanation, or, if they did, may not have accepted it as furnishing a reasonable excuse for such failure.

A motorman in charge of a street car running upon a track which is imbedded in and forms a part of the street is charged, by the law, at all times, whether his car is in a street which is frequently or one which is seldom used by the public, with constant watchfulness for those who, in using or crossing the street, go upon or in dangerous proximity to the track. He is also required to operate his car under such speed and with such control that, if "persons or property be upon or dangerously near the track of the street railway, the car may be, with skilled application of stopping appliances, stopped, and injury thereto averted." Anniston El. & G. Co. v. Rosen, 159 Ala. 202, 48 So. 801, 133 Am.St.Rep. 32.

The motorman of a street car has no right to assume that a child of tender age--such a child as the plaintiff in this case was--who is seen by him on, or in dangerous proximity to, the track, will leave the track to avert injury. When he sees such a child, or children, on or in dangerous proximity to the track, the law requires him to at once put his car under such control as to immediately stop it, if that becomes necessary to avert injury. Anniston El. & G. Co. v. Rosen, 159 Ala. 195, 48 So. 798, 133 Am.St.Rep. 32.

It is also a familiar proposition that a rate of speed which a street car may, with perfect safety, maintain at a given point on a street at one time, may, at another time, amount to that reckless indifference to the rights of others as to amount to wantonness.

Under some of the tendencies of the plaintiff's evidence he was, if the jury believed that evidence, entitled to a verdict upon the first count of the complaint, and, under other phases of the evidence, it was for the jury to say whether he was entitled to a verdict under the fourth count. Nellis on Street Railways, vol. 2, p. 347; Rosen's Case, supra; Joyce on Electric Law, §§ 570, 573, 582.

(1) The original complaint consisted of four counts, but the second and third were eliminated, and the case was tried upon the first count, which was a count for simple negligence, and the fourth count, which alleged that the plaintiff's injuries were willfully or wantonly inflicted. Both of these counts alleged that the plaintiff was only five years old when he received his injuries. As therefore it is plain that the plea of contributory negligence was applicable to neither count, the action of the trial court in striking that plea as frivolous was free from error.

(2) In both the first and fourth counts the word "defendant" was used where the word "plaintiff" was plainly intended, and that defect was therefore self-correcting. There was a demurrer to these counts, but the demurrer was not well taken. The sufficiency of similar counts, when tested by demurrer, has been so frequently upheld by this court that we deem a citation of authority to sustain this statement as altogether unnecessary.

(3) The trial court gave its instructions to the jury in...