Appeal
from City Court of Birmingham; Charles A. Senn, Judge.
"Not
officially reported."
Action
by Electa C. Smith against the Birmingham Railway, Light &
Power Company. From a judgment in favor of defendant
plaintiff 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.
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...
