North Birmingham Street Railway Co. v. Calderwood

SOMERVILLE, J. The action is brought for an injury received by the plaintiff in stepping from the train of the defendant’s street railroad, which was operated by a steam dummy-engine in the city of Birmingham. The verdict of the jury was for the plaintiff, in the sum of five thousand dollars damages. The alleged negligence of the defendant, as averred in the complaint, was the failure of the engineer of the train to stop a sufficient length of time to enable the [253] plaintiff to safely alight on the west side of Twentieth street, where trains were accustomed to stop to deliver passengers. 1. The defendant, in the eighth charge, requested the court to instruct the jury that, if they believed from the evidence that the damage complained of was received on the east side of said street, then, under the allegations of the complaint, the jury must find for the defendant — in other words, that there would be a fatal variance between the allegations and the proof. We think, under the facts .of the case, the place of stopping was material, and that the court erred in not giving the charge. It was shown by the evidence that a municipal ordinance of the city, regulating the running and stopping of street cars, required each stop to be made just beyond the far crossing from the car, or dummy-engine, “so as to clear the street or avenue from the side-walk,” and prohibibited a violation of this regulation under a penalty as a misdemeanor. The ordinance thus prohibited trains to stop on the east side of streets when moving westward, or on the west side when moving eastward, either to receive or deliver passengers. They were required to cross the street before coming to a stop. And the evidence shows this was the custom of the company, except, in cases of necessity, to avoid accident, or collision with vehicles, or pedestrians. The train, in this case, was moving westward at the time of the accident. The lawful stopping place, therefore, was on the west side of Twentieth street. It was unlawful to stop on the east side for the purpose of allowing a passenger to alight. The contract of the defendant with the plaintiff, as a passenger on its cars, must necessarily imply an agreement to stop on the west, and not on the east side. The duties, therefore, imposed by law on the defendant’s servants, were materially different at the two places. At the lawful stopping-place they were compelled to stop to deliver the plaintiff, on receiving proper notice of her desire to stop, or show some lawful excuse for their failure to do so. This stop was required to be for a time reasonably sufficient to enable her to conveniently alight.—Central R. R. Co. v. Miles, 6 South. Rep. 696; 88 Ala. 256. And the duty of keeping a diligent look-out rested on the engineer and conductor, to see that a premature start of the train, such as might endanger her safety, should not be negligently made. No such duties were required at a place where it was unlawful to stop for the [254] purpose of delivering passengers, unless those in charge of the train elected to stop, in violation of law, and thereby induced the plaintiff to alight. In such case, on being informed of her presence • and desire, they would presumptively be chargeable with negligence if they failed to stop for a time reasonably sufficient to permit a safe exit from the train. The case of the Western Railway of Ala. v. Sistrunk, 85 Ala. 352, is distinguishable from this case, on the obvious ground, that the alleged variance of place there was immaterial, the duties of the defendant to the plaintiff being precisely identical at each. Eor the error of refusing this charge, the .judgment of the City Court must be reversed. 2. Contributory negligence is defensive matter, and the burden of establishing it is ordinarily cast on the defendant; but this is not a correct proposition, where the plaintiff’s own testimony, which seeks to fix negligence on the defendant, inculpates himself also, as it tends to do in this case.—S. & M. R. R. Co. v. Shearer, 58 Ala. 672. Or, to state the proposition otherwise: “When the plaintiff shows negligence on part of the defendant, and there is nothing to imply that the plaintiff brought on the injury by his. own negligence, then the burden of proof is on the defendant, to show that the plaintiff was guilty of negligence.”—Cassidy v. Angell, 34 Amer. Rep. 690; Whart. onNegl. §§ 423, 425. The third charge requested by the plaintiff should not have been given. 3. So, the second charge would have been less liable to mislead, if it had asserted that contributory negligence can not be invoked as a defense, unless it is a proximate cause, instead of the proximate cause of the injury. It need not be the sole cause, but it is sufficient if it be one of two or more concurring efficient causes. — Sistrunk’s Case, 85 Ala. 352, supra. 4. The fourth .charge given for the plaintiff was also erroneous. Whether the train stopped on the west or the east side of the street was a material issue on the trial, and it should have been determined by the jury on the evidence, without reference to any presumption supposed to arise from duty to stop on the west side, which was imposed by the city ordinance. 5. There was some evidence from which the jury, in our judgment, were authorized to infer that the stoppage was on the west side of the street, and the objection to the fifth [255] charge requested by plaintiff, based on this ground, is not tenable. If this instruction had limited the amount of recovery to that claimed in the complaint, we see no error. 6. The question of the plaintiff’s alleged contributory negligence was properly left to the jury as a question of fact. "We would not, under the evidence, be justified in deciding it adversely to her as a matter of law.—L. & N. R. R. Co. v. Perry, 87 Ala. 392, and cases cited. If the conductor was not in his place on the car, and the train stopped any where on the street in apparent response to the pulling of the bell-cord by the plaintiff, and she, believing reasonably that the stop was made for the purpose of allowing her to alight, attempted to do so, the question of her contributory negligence would be one of fact to be properly left to the jury. In this view, all of the defendant’s charges, from the first to the fifth, inclusive, and* also the seventh, were erroneous and properly refused. And the fifth charge was misleading, because it excluded the phase of the case last adverted to by us, involving the duties arising from a stoppage at another than lawful station, or place for the delivery of passengers. 7. The plaintiff, in our judgment, must be held to know the rule of stopping on the farther side of the street, as prescribed by the city ordinance. “It is well established, that the residents within a municipality must take notice of the ordinances, and it is frequently stated, that ordinances have the force and effect of laws within the limits of the corporation.” — Municipal Police Ord., Horr. & Bemis, 158. This principle seems sound, when applied to any person within a municipality, who contracts, even by implication, with reference to such ordinances, when operative as police regulations. The contract here, as we have seen, by necessary intendment was, that the delivery of the plaintiff as a passenger was to be at a regular stopping-place, such as would not be violative of any existing and lawful police regulation. This devolved on her the responsibility of informing herself of what we may pronounce an every-day incident of street-railway travel. — Mitchell v. Chicago Railway Co., 51 Mich. 236. The foregoing view is not inconsistent with the principle settled in this State, but denied in many other jurisdictions, that courts will not take judicial notice of municipal by-laws, but require them to be proved as facts.—Case v. Mayor of Mobile, 30 Ala. 538; Munic. Pol. Ord. (Horr. & Bemis) 158, Nor with the rule, that such an ordinance will not be [256] permitted to create a civil right in favor of a third person, based on the negligence of one failing to obey it.—Henry v. Sprague, 23 Amer. Rep. 502; Flynn v. The Canton Co., 17 Ib. 603; Kirby v. Boylston Market Asso., 74 Amer. Dec. 682. Reversed and remanded.