Central of Georgia Ry. Co. v. Jones

70 So. 729, 195 Ala. 378, 1915 Ala. LEXIS 385

• Court: Supreme Court of Alabama
• Decided: December 16, 1915
• Status: Published

Opinions

ANDERSON, C. J.

(1) “The doctrine is well settled in this and most of the other states, as well as by the federal courts, that the contributory negligence of one in charge of, or control of, a train, car, or other vehicle, cannot be visited upon a person who is a passenger therein, whether for reward or not, unless the person so riding has charge or control of the vehicle; or over the person who is driving or operating same.” — Birmingham & Tuscaloosa Utilities Co. v. Carpenter, 194 Ala. 141, 69 South. 626; L. & N. R. R. Co. v. Calvert, 170 Ala. 565, 54 South. 184; Birmingham R. R. Co. v. Baker, 132 Ala. 515, 31 South. 618; North Ala. Co. v. Thomas, 164 Ala. 191, 51 South. 418; Elyton Co. v. Mingea, 89 Ala. 421, 7 South. 666. Defendant’s pleas A and B set up negligence on the part of the plaintiff for failing to stop and look and listen, though the horse was being driven by another, and there was no averment that she controlled the driver or the vehicle. The trial court did not err in sustaining the plaintiff’s demurrer to these pleas.

(2) Charge 6, refused the defendant (being typical of all as suggested in brief), advances the theory of negligence on the part of the plaintiff for a failure to stop and look and listen, notwithstanding she was not in control of the vehicle or driver, and it was properly refused.

Counsel for appellant cite and quote from authorities supporting the doctrine invoked by these pleas and charges, but they are not in line with the weight of authority and have often been repudiated by this court. — Elyton Land Co. v. Mingea, 89 Ala. 521, 7 South. 666.

The judgment of the city court is affirmed.

Affirmed.

Mayfield, Somerville . and Thomas, JJ., concur.