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

• Decision Date: 19 May 1906
• Citation: Smith v. Birmingham Ry., Light & Power Co., 147 Ala. 702, 41 So. 307 (Ala. 1906)
• Parties: SMITH v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

41 So. 307

147 Ala. 702

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

Supreme Court of Alabama

May 19, 1906

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

"Not officially reported."

Action by Electa C. Smith against the Birmingham Railway, Light &amp Power Company.From a judgment in favor of defendantplaintiff appeals.Affirmed.

The first count was in the following words: "The plaintiff who brings this suit in her capacity as administratrix of the estate of Robert Hall, deceased, claims of the defendant the sum of $25,000 as damages, for that heretofore, on the 3d day of May, 1902, defendant was the common carrier of passengers for hire and reward by means of a car or cars operated or propelled by electricity upon a street railway running in and from the city of Birmingham, along First avenue, to the town of East Lake, in Jefferson county; that on said day defendant was operating one of said cars as aforesaid, attached to which was a trailer car, both of which were going from said city of Birmingham towards said East Lake, and plaintiff says intestate was engaged in the act of boarding said front car to be carried by defendant as its passenger on same, and while plaintiff's said intestate was so engaged as aforesaid, and said car or cars were at a point on said street railway on First avenue at or near where said avenue is intersected by the tracks of the Louisville & Nashville Railroad Company, near Sloss Furnace, in said county, said car or cars were jerked or started forward, and as a proximate consequence thereof plaintiff's intestate was jerked, thrown, or caused to fall from the front car, or from the rear step or steps thereof, to the ground, whereby he was run over by said trailer car, and thereby so maimed, wounded, and injured that he died shortly thereafter as a proximate result of said wounds and injuries.Plaintiff alleges that said car was jerked or started forward as aforesaid while plaintiff's intestate was engaged in or about boarding same as afore-said, and plaintiff's said intestate's death was caused by reason of and as a proximate consequence of the negligence of said defendant in or about jerking or starting said car forward while plaintiff's intestate was engaged in or about boarding the same as its passenger."

The following demurrers were filed to this count: "For that it does not appear from the complaint that there was any duty on the defendant to hold its car at the time and place plaintiff's intestate was attempting to board the same until he should have gotten upon the car.(2) For that it does not appear that the car was at the regular stopping place or that it had stopped for the purpose of allowing the passengers to embark or disembark.(3) For that it does not appear from the complaint that the defendant violated any duty which it owed the said intestate."These demurrers were sustained.The count was afterwards amended.

The sixth count differed from the other counts only in that it counted on wanton negligence.The evidence is sufficiently set out in the opinion.

The plaintiff requested the following charges, which the court refused: "(1) I charge you, gentlemen of the jury, that if you believe from the evidence that the car was negligently jerked while the deceased was in the act of boarding it, and that the jerking of the car was the sole cause of the injury, then you must find for the plaintiff.* * * (7) If the jury believe from the evidence that the sole cause of the plaintiff's injury was a sudden jerk of the car, and that he acted only as an ordinarily prudent person would have acted in getting upon the steps of the car, then your verdict must be for the plaintiff, if the jury believe the evidence."

The following charges were requested by the defendant, and given: "(5) If the jury believe from the evidence that the deceased, Robert Hall, did not attempt to board the car at a place where the car stops to take on or let off passengers, or at a place where he was invited to board the car, then there was no duty on defendant's conductor to see or know that he was attempting to board the car.(6) If the jury believe from the evidence that the defendant's motorman or conductor or agent in charge of the car did not know that Robert Hall desired or intended to board the car referred to in the evidence in this case, and that no one of said agents had notice or knew that he was attempting to board it, and that he did attempt to board the car at a place where he was not expressly or impliedly invited to board the car, and while it was in motion, then, although the jury may believe from the evidence that a sudden jerk or movement of the car caused said Hall to fall and be injured as complained of, yet the defendant was not under the duty to protect said Hall, and the jury must find for the defendant.(7) Before the jury can conclude that deceased, Robert Hall, was entitled to the protection which the law accords to a passenger, they must be reasonably satisfied from the evidence that he attempted to board defendant's car at a time when or a place where defendant expressly or impliedly invited him to board its car, and if the jury are reasonably satisfied from the evidence that said Robert Hall did not attempt to board the car at a place where or a time when he was expressly or impliedly invited by defendant or its agents or servants to do so, they must find for the defendant.(8) If the jury believe from the evidence that deceased was caused to fall or was thrown from defendant's car by a jerk of the car, and if they further believe from the evidence that he was attempting to board the car at a place where he was not expressly or impliedly invited to board it, and that neither of defendant's servants in charge of the car knew that he was attempting to board it, the verdict of the jury must be for the defendant.(9) If you believe from all of the evidence that the deceased undertook or attempted to get on the car in the nighttime when it was running four or five or six miles an hour, and further believe that the deceased was incumbered by a bundle when he made such attempt to get on the car, I charge you that the deceased was guilty of negligence in making such an attempt.* * * (15) If the jury believe from the evidence that, after the motor car had crossed the transfer track, the plaintiff's intestate was standing at a place near a pole between the transfer track and the main-line track, then the conductor did not have to look out for him where the car stopped, if it did not stop west of the transfer track.(16) Unless you believe from the evidence that the motorman or conductor were guilty of negligence, you must render your verdict in favor of the defendant.(17) If the jury believe from the evidence that deceased attempted to board a car that was running from four to six miles an hour, and that there was obvious risk or danger to make the attempt, and that he was injured in consequence of said attempt, and that defendant's conductor or motorman did not know that he was making an attempt to board a moving car, if he did make the attempt, they must find for the defendant.(18) If the jury believe from the evidence that the deceased was caused to fall from defendant's car by a jerk or sudden movement of the car, and that his position on the car was not known to either the motorman or conductor on the car, and that he attempted to board the car while it was in motion and at a place where he was not expressly or impliedly invited to board the car, they must find for the defendant.(19) If the jury believe from the evidence that the deceased attempted to board defendant's car at a place where defendant's car did not usually or frequently stop to take on or let off passengers, they must find for the defendant."

There was motion for new trial, based upon errors in the ruling of the court in giving charges for the defendant above set out and upon newly discovered testimony, which was overruled.

Stallings & Nesmith, for appellant.

Walker, Tillman, Campbell & Walker, for appellee.

HARALSON J.

1.The demurrer to the first count was properly sustained.As was said of the complaint in the case of N. B. R. Co. v. Liddicoat,99 Ala. 551, 13 So. 20."It is not averred that appellee was attempting to board the train at a station provided for passengers, or at a place where it was usual or customary to receive passengers on its cars, or that appellee was invited or knowingly permitted to attempt to board the car by any authorized servant or employé of the company, or that he was, in any manner, accepted as a passenger.In the absence of averments showing an express contract of carriage, or of facts from which such contract is implied in law, no relation is shown to have subsisted between the parties at the time of the accident," such as devolved on the defendant the duty of caring for plaintiff's intestate as a passenger.The count was lacking in averments sufficient to raise the relation of carrier and passenger between the parties.

2.The record does not show that the demurrer to the sixth count was passed upon.

3.The pleas of contributory negligence were good as to all the counts except the sixth, and the ruling of the court in so holding was free from error.

4.The witness, Black, for plaintiff, testified to the location of the different tracks of the Louisville & Nashville Railroad Company, in respect to the street car line, and the plaintiff in order to show if there had not been some change in these tracks since the injury to plaintiff's intestate, on the 3d of May, 1902, asked him, "Mr. Black, I will ask you if that Frisco transfer track this side of the L. & N. main line has not been built there since Hall was killed?"The defendant objected to the question on the...