67 So. 269 | Ala. | 1914
The plaintiff, a stranger to Montgomery, Avas injured by a street car of appellant, and brought this suit to recover damages for the. injuries which he thus received.
It appears from the plaintiff’s evidence that in the city of Birmingham street cars are boarded from the right side; that the plaintiff knew that fact; but that he did not know from which side a street car is boarded in Montgomery.
The plaintiff testified that he came into Montgomery during the afternoon; that his brother-in-law lived in Montgomery, but that he did not knoAv the place of his residence; and that he finally ascertained that he lived
“I was on the corner waiting to catch a car back to town, and had been sitting there some little time. I had decided to catch the first car that came along, as none seemed to be going my way. I was about one block from the end of the car line, thought the rules in Montgomery were like those in Birmingham; that is, that you had to be on the right-hand side of the car before they would notice you at all. I went across the track, and in doing so my left foot hung in the rail and threw me down. I made several hard lunges to get my foot out, but the car was coming so>' fast that I decided right quickly that I had rather have my leg cut off than to be killed, so I crawled back on the same side my foot was hung on, and just as I got my body over the rail I pullel out and raised up against the rail to pull myself on up and get out of the way. I got my arm over except a part of my hand, and • at that time the car struck me. Two of my fingers were cut off, and another was mangled so that it is of no service. I was scarred over the nose, my chin fractured, and my head bruised so that it has no feeling in it all on this side, and I was bruised considerably. I don’t know what happened after the car struck me. When I next realized the car had struck me I was in St. Margaret’s Hospital, something like two1 weeks after the accident. * * When I started across the track the car was about two blocks from me — down near the curve. I was on South Court street, where the car goes to the end of the line, and on the right-hand side of the car if it had been going to town; in other words, on the left side of the street, or the east side of the street. The car was about two blocks away, and I started to cross to
The motorman in charge of the car which struck the plaintiff testified for the defendant, in substance as follows : “The car had a strong headlight on it. The company at that time did not have two kinds of headlights. I am working for the street car company now, and have been with them since the accident. The car was in good condition that night, and was equipped Avith reverse lever and brakes, both of which were in good condition, but I cannot say first-class condition, and I was keeping a lookout all the time. It Avas upgrade. The night was dark. The reverse lever, was in perfect condition. The headlight did not shine very far, but you could see the rail, but could not see the ground. It was not a very good light, but I could see the rails. The light did not shine like an arc light, but did shine like those on street cars and was as good a light as the street car company had. I knew what kind of light it was and how far I could see ahead of the car. I don’t
The above testimony gives, substantially, the facts upon which the case was tried, and upon which facts the verdict of the jury was for the plaintiff.
The reason which underlies the rule which requires an engineer in charge of a locomotive and the motorman in charge of a street car to keep a lookout for obstructions on the track is the same reason which underlies the above rule with reference to headlights, for, to use the language of counsel for appellee in their brief, “in the nighttime the headlight with its rays must of necessity become the eyes of the engineer or motorman and thus enable him to keep the lookout which his eyes give him the power to do in the daytime.”
In the case of Southern Railway Co. v. Stewart, 179 Ala. 304, 60 South. 927, this court, in speaking of the duty of a motorman in charge of a street car upon a track which forms a part of the street, said: “On such a track it was the duty of thennotorman to keep a lookout for all persons liable to be run over, no matter how
In the case of Birmingham Railway, Light & Power Co. v. Fuqua, 174 Ala. 631, 56 South. 578, this court held that, when a car track forms a part of the street, “the law recognizes no distinction between keeping a lookout for one prone, and one erect, on the track. The duty of keeping a lookout is the same in either case.” The rule requiring a lookout for persons prone upon a track is, however, limited in this state, in so far as the rights of the person prone upon the track are concerned, to tracks running along and forming parts of public streets. — Southern Railway Co. v. Stewart, 179 Ala. 304, 60 South. 927.
In the instant case, therefore, it was the duty of the motorman of the defendant, not only to the public, but also to the plaintiff, to so regulate and control the speed of his car, which he was running on a track which formed a part of this public street, as to' be able to stop the car, with the aid of the appliances which he had upon the car, within the distance in which, by the aid of the headlight which was used upon the car, he could see a man prone upon such track. The law exacted this duty of the motorman, and if he failed to' observe that duty he was guilty of negligence. — Southern Railway Co. v. Stewart, supra; B. R., L. & P. Co. v. Fuqua, supra; Western Railway Co. v. Mitchell, supura; Sheffield Co. v. Harris, 183 Ala. 357, 61 South. 88; Birmingham Ry., Light & Power Co. v. Jones, 153 Ala. 157, 45 South. 177. While a motorman running a car over a track which forms a part of a street may not be required to provide against what he has no legal ground to believe will happen (Schneider v. Mobile & C. R. R. Co., 146 Ala. 344, 40 South. 761), he is re
Whether a motorman, after discovering the peril of a trespasser who shows that he is either ignorant, or apparently is regardless of his peril, is guilty of negligence if he fails to employ all means known to a person skilled as a motorman to avert injury to such a trespasser, has not been an open question in this state, certainly since the rendition of the above decision. A man who is drunk or in any way disabled, on a street car track, is entitled to a recovery for damages inflicted upon him by a street car if the motorman sav^ him on the track in time to prevent the injury, and then negligently failed to use the precautions vdiich a reasonably prudent man skilled as a motorman would have been expected to use to prevent the injury. — Randle v. Birmingham Ry., Light & Power Co., 158 Ala. 532, 48 South. 114; Birmingham Ry., Light & Power Co. v. Ryan, 148 Ala. 69, 41 South. 616; Birmingham Ry., Light & Power Co. v. Morris, 163 Ala. 190, 50 South. 198.
4. This case has been carefully and ably briefed by counsel on both sides. A careful examination of this record convinces us that, when the oral charge of the court is considered in its entirety, it is free from reversible error. One or two of the sentences used by the trial judge may possibly have had a misleading tendency, but the jury were hardly misled thereby.
The court refused some of the written charges which were requested by the defendant, but the refused
We find no reversible error in the record, and the judgment of the court below is affirmed.
Affirmed.