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

• Decision Date: 26 June 1919
• Docket Number: 6 Div. 911
• Citation: 203 Ala. 351,83 So. 95
• Court: Alabama Supreme Court
• Parties: WILLINGHAM v. BIRMINGHAM RY., LIGHT & POWER CO.

83 So. 95

203 Ala. 351

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

6 Div. 911

Supreme Court of Alabama

June 26, 1919

On Rehearing, October 23, 1919

Appeal from Circuit Court, Jefferson County; C.W. Ferguson, Judge.

Action by Elias Willingham against the Birmingham Railway, Light &amp Power Company, for damages for injuries suffered while a passenger. Judgment for the defendant, and plaintiff appeals. Affirmed.

Sayre Gardner, and Thomas, JJ., dissenting.

First count, after alleging the relation of passenger and carrier charges that while plaintiff was a passenger the motorman, an agent or servant of the defendant, in charge of and controlling the operation of said car, in violation of his duty as such agent or servant, assaulted the plaintiff by striking him in the face. Count 2 charges the same facts as being willfully and maliciously done. Count 3 charges the same facts, and in addition to the assault charges the use of harsh, abusive, and unkind language by the motorman to plaintiff. The other counts charge the same facts in varying phraseology.

The following excerpts from the evidence show where plaintiff was when he charges that he was struck and abused:

Charlie Baron: After the motorman opened the gate for him and he had stepped out on the ground, the motorman abused him. Elias had turned around and was going home; he had taken three or four steps towards home after he got down off the car; he had gotten three or four steps from the car when the motorman got down off the car and was walking just in a common gait, and he turned around, and the motorman struck him as he turned. After he got on the ground, the motorman only asked him why he didn't shut the door.

Earl Simmonds: The car stopped, and Elias went to get off and the motorman told him to shut the door. Elias stepped down on the ground and started up the street, and when he was four or five steps from the car, the motorman got off and struck him.

Lula Moody: Elias got off between the store and car, and the street comes right in front of the little store, and Elias was going towards the street, but had not reached the street when the motorman struck him. There is no station there, just the street.

J.L. Ryan testified, that they were from 8 to 15 feet from the car track when the blow was struck. Loyd Reeves testified that he was on the outside when the car rolled up, and that it stopped and stood so long that he and another fellow walked around to see what was the trouble, and that he saw the two men. Plaintiff himself testified that he stepped to the ground, and the motorman followed; that he heard some one coming behind him, and turned around after he had gotten three or four steps from the car, and was struck.

Frank S. White & Sons and Joseph E. Robinson, all of Birmingham, for appellant.

Tillman, Bradley & Morrow, of Birmingham, for appellee.

McCLELLAN J.

The plaintiff, appellant, stated his case against the appellee, a street railway company operating lines as a common carrier of passengers, in several counts, under the averments of five of which the testimony was taken. The allegation common to all of these counts defined the plaintiff's relation to have been that of a passenger at the time the wrongs averred were suffered by him at the hands of the carrier's motorman. The plaintiff's evidence went to show that as he was preparing to leave the car on which he was, in fact, a passenger the motorman commanded him to close the door through which he was passing from the body of the car to the platform; that, though in response to the command he told the motorman, in a civil manner, that another man behind him would close the door, the motorman upbraided him for not closing the door, and finally, while he was yet a passenger on the car, applied for him abusive and insulting language, and, after the plaintiff had alighted from the car, pursued him and struck him with the "controller," a heavy metal piece used in the operation of the motor, inflicting very severe injuries upon the plaintiff. The evidence for the defendant tended to contradict the plaintiff's contention that the motorman offended or abused the plaintiff in any way while he was on the car, while he was a passenger. The court submitted this controverted issue to the jury. In view of the allegation that the plaintiff was a passenger even when he was assaulted by the motorman, an essential prerequisite to the plaintiff's right to recover for the injuries resulting from the blow with the "controller," for injuries inflicted after the plaintiff had left the car, was that he should have been a passenger at the time. The trial court concluded that on the whole evidence the plaintiff's previous relation as a passenger had terminated before the plaintiff was assaulted by the motorman.

Differing in degree, at least, from the rule prevailing in other jurisdictions with respect to the time when the relation between a street railway carrier and a passenger ceases (10 C.J. pp. 625, 626; 4 R.C.L. pp. 1047, 1048, and notes), in this jurisdiction the accepted rule is that the relation is not terminated by the passenger's mere act of leaving the car, "but continues until he has a reasonable opportunity to leave the car and the roadway of the company," after the car has reached the station or stopping place to which he is entitled to be carried. Melton v. B.R., L. & P. Co., 153 Ala. 95, 97, 45 So. 151, 16 L.R.A. (N.S.) 467; B.R., L. & P. Co. v. O'Brien, 185 Ala. 617, 621,

64 So. 343.

The general rule applicable to carriers having exclusive control or occupation of its tracks, stations, and grounds for the reception and discharge of passengers cannot, in the nature of things, be applicable to a street railway carrier which receives and discharges its passengers in a public highway. 4 R.C.L. p. 1047, and note.

From a careful review of the whole evidence, this court concurs in the trial court's conclusion that the relation of passenger and carrier had terminated at the time the motorman assaulted the plaintiff, who had left the car and was moving therefrom over the public street in which he had alighted. It indisputably appears that the place where the plaintiff alighted was a public thoroughfare; that at the time of the assault the plaintiff had voluntarily alighted from the car; that he was then a step or two, at least, from the car, a pedestrian in the street, not a passenger of the carrier; that he had then left the car "and the roadway" as effectually and completely as if he had traveled 20 or more feet. The O'Brien Case, cited above, and other decisions delivered here where the question of the safety of the place of discharge of a passenger was a factor in the inquiry, contribute nothing to invite a different conclusion.

The fact (if so) that from the time of the application of offensive language by the motorman to the plaintiff, while the latter was yet a passenger, to the time the assault was committed on the plaintiff--after he left the car and was in the street--was a continuous transaction between the men could not avail to postpone the time when the plaintiff's relation as a passenger ceased, a termination of relation that was accomplished by the voluntary act of the plaintiff, not resulting from any compulsion on the part of the motorman.

The case of Alabama City, etc., Ry. Co. v. Sampley, 169 Ala. 372, 53 So. 142, is without application to the facts presented in the case under review. Sampley was held to be a passenger at the time he was assaulted by the conductor of the street car. It appears from the opinion that Sampley was carried by his destination; that when the conductor demanded a second fare an altercation arose; that, according to the plaintiff's contention, "defendant's conductor attacked plaintiff, *** the rest following uninterruptedly," while in the case under review the evidence showed without dispute that the plaintiff voluntarily alighted at his destination, no attack upon him being made while he was on the car. As before stated, the court in this instance submitted to the jury the issue whether the plaintiff was subjected to indignity or insult through the language applied to him while he was yet on the car.

The remaining controverted issue under the evidence was whether the motorman subjected the plaintiff, while he was a passenger, to abuse or insult, in breach of the duty defined in Birmingham, etc., Ry. Co. v. Baird, 130 Ala. 334 30 So. 456, 54 L.R.A. 752, 89 Am.St.Rep. 43. That was a question for the jury to decide, under the conflicting evidence. The general affirmative charge could not have been correctly given on that issue. No prejudicial error appears to have colored or...