Sweet v. Birmingham Ry. & Elec. Co.

• Decision Date: 28 February 1903
• Court: Alabama Supreme Court
• Parties: SWEET v. BIRMINGHAM RY. & ELECTRIC CO.

33 So. 886

136 Ala. 166

SWEET v. BIRMINGHAM RY. & ELECTRIC CO.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Bessemer County; A. A. Coleman, Judge.

Action by Mrs. M. M. Sweet against the Birmingham Railway & Electric Company. Judgment for defendant, and plaintiff appeals. Reversed.

James Trotter and J. A. Estes, for appellant.

Walker Tillman, Campbell & Porter, for appellee.

SHARPE J.

This action is to recover for injuries alleged to have been inflicted on the plaintiff by negligent conduct of the defendant while acting in the capacity of a common carrier. Defendant pleaded the general issue and contributory negligence. At defendant's request the court charged, in writing, "If the jury believe the evidence in this case they will find a verdict for the defendant;" and the propriety of that charge is the only matter here in question.

The train by which the injury occurred was used by defendant for carrying passengers between Bessemer and Birmingham, and along certain streets and avenues of those cities. It consisted of cars drawn by what is known as a "dummy engine," propelled by steam. Customarily it stopped at street crossings to receive passengers when signaled, and to discharge passengers when the conductor was notified to stop. Plaintiff about nightfall boarded the train at Third avenue in Bessemer, and rode to Eighth avenue crossing, where a passenger for whom a signal had been given from the outside got on, and the plaintiff attempted to get off, the train. At that time the train had not stopped entirely, and was moving by that station. The conductor had not collected plaintiff's fare, and was not notified of her destination. There is evidence which, though in conflict with other evidence, tends to show that as it approached Eighth avenue, and when the signal by the person taking passage was given, the train was brought nearly to a stop, and that thereupon the plaintiff, with her left hand holding a bundle and her right the hand railing, descended to the steps of the car platform, about the time the other passenger got aboard, and that when she reached the bottom step, and was about to step from the train, its speed was quickened with a jerk, whereby she was thrown to the ground. In her fall, plaintiff received the injuries on account of which she sues. She testified, among other things, that "the dummy stopped regularly at that crossing; in getting on and off there, they stopped there all the time."

In view of the whole evidence, we are of the opinion the charge referred to should not have been given. The degree of diligence which the law imposes on operatives of such trains is no less strict than that applying where the train is of the ordinary, larger kind. In respect of starting...