Sington v. Birmingham Ry., Light & Power Co.

• Citation: 200 Ala. 282,76 So. 48
• Decision Date: 17 May 1917
• Docket Number: 6 Div. 559
• Parties: SINGTON v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Supreme Court of Alabama

76 So. 48

200 Ala. 282

SINGTON v. BIRMINGHAM RY., LIGHT & POWER CO.

6 Div. 559

Supreme Court of Alabama

May 17, 1917

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Action by Max Sington against the Birmingham Railway, Light & Power Company for damages for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Winkler & Smith, of Birmingham, for appellant.

Tillman Bradley & Morrow and T.A. McFarland, all of Birmingham, for appellee.

McCLELLAN J.

The plaintiff, appellant, was injured in a public street in the city of Birmingham. He was a pedestrian, not a person intending to take passage on the defendant's appellee's, street car. He was injured in one of two ways, viz. run into by the defendant's street car while he was on the track, or hit by the open doors leading into the front platform or vestibule of the street car; the doors when open extending beyond the lateral line of the street car about 18 or 20 inches. The defendant's evidence was to the effect that plaintiff was hit by the car proper; the doors mentioned not being open at the time plaintiff was stricken.

If the car proper struck the plaintiff, it is clear that the plaintiff could not recover, whatever the negligence or wantonness characterizing the speed at which the car was being operated, since the evidence shows without dispute that after the motorman became aware of plaintiff's purpose (according to that phase of the evidence), to go upon or dangerously near the track, he did all a skillful motorman could do to stop the car and avert the injury; and additionally, since the plaintiff's own testimony discloses that he was fully aware of the car's approach, thereby, if the defendant's theory of the cause of his injury was accepted by the jury, necessarily concluding him because of his own heedlessness, his own negligence.

The general affirmative charges for the defendant were given on the issues tendered by counts 3 and 4. The presently important averments of count 3 were these:

"The plaintiff avers that he suffered said injuries and damages as a proximate consequence of the negligence of the agents or servants of defendant who were acting within the line and scope of their authority and employment in the operation of said car; and that said negligence consisted in this: That said Avenue K or Eleventh Avenue South is a public thoroughfare of said city of Birmingham; that the same is situated in a very populous locality in said city, and that said avenue is used constantly by the public, both pedestrians and in vehicles, and that persons were frequently on or very near the railway tracks of defendant at the hour of the day and place where said injuries were received by plaintiff as aforesaid, which great use of said avenue was well known to said agents or servants of defendant; that it was then in the nighttime, and that it was the custom or usage of those operating cars on defendant's said line of railway to stop the cars which were proceeding in the direction that said car was then proceeding for the purpose of allowing persons who were on said avenue at or about the place where plaintiff was at said time to board said cars and to take passage thereon, which said custom or usage was well known to said agents or servants of defendants; and plaintiff further avers that he was at said place in company with another person who was at said place for the purpose of taking passage on said car, and plaintiff avers that said servants or agents of defendant, knowing that persons were likely to be on or very near said track at said place, and knowing that some person would probably be injured thereby, and with reckless indifference to the consequences, willfully or wantonly operated said car at a rapid rate of speed so that the same or a part of said car struck the plaintiff, thereby proximately causing said injuries to him as aforesaid."

After appropriating all of the averments of count 3 down to the allegation that plaintiff, on the occasion of his injury, was accompanying a friend to take passage on this street car, count 4 concludes with these averments:

"And plaintiff avers that said agents or servants well knowing that persons were likely to be at said place at said time and knowing that injury to some persons was likely to be caused thereby and with reckless indifference to the consequences willfully or wantonly caused the door or gate of said car to be opened to and project a distance of, to wit, 18 inches from the side of said car while said car was being operated at a rapid rate of speed, so that said gate or door of said car came into contact with or struck the plaintiff, thereby proximately causing the injuries and damage to plaintiff as aforesaid."

The solution of the inquiry, whether this count (4) charges wanton or willful misconduct, or only simple negligence, on the part of the defendant's operative, cannot be aided or affected by the use of the terms "willfully" or "wantonly," as characterizing the operative's act of causing the door or gate of said car to be opened to and project some distance from the side of the car, since the willfulness or wantonness as there employed is with respect to the opening of the door or gate, and not with respect to the operation of the car with the door or gate open. The distinction indicated is the basis of the two characters of wrongs, viz. willful or wanton misconduct or omission, and simple negligence, for damage in proximate consequence of which a person injured may have his redress.

An act or omission is simple negligence or a wanton or intentional wrong according to the absence or presence of the mental state of the person who did or omitted to do that which duty required in the premises; and, if the person intended to inflict the injury or did the act or omitted to do his duty under the...