Birmingham Ry. L. & P. Co. v. Brown
Supreme Court of Alabama
Action for Injury to Person Grossing Trade. Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Action by Myers Brown against the Birmingham Railway, Light & Power Company for injuries resulting from a collision between defendant’s street car and a vehicle driven by plaintiff. From a judgment for plaintiff, defendant appeals.
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Action for Injury to Person Grossing Trade. Appeal from Jefferson Circuit Court. Heard before Hon. A. A. Coleman. Action by Myers Brown against the Birmingham Railway, Light & Power Company for injuries resulting from a collision between defendant’s street car and a vehicle driven by plaintiff. From a judgment for plaintiff, defendant appeals. The first count is in simple negligence, and alleges that the collision occurred while the plaintiff was crossing one of defendant’s railroad tracks on a highway which is the continuation of Eighth avenue in the city of Birmingham. The second count was…
1Opinion of the CourtAnderson, J.
The second count of the complaint was not subject to the tenth ground of demurrer, being the only one insisted upon by counsel, and the trial court, did not err in overruling same.
The plea of contributory negligence was no answer to the second count.
The complaint avers that the collision occurred at a point where defendant’s track was on the public highway, hut the proof shows that plaintiff’s wagon was struck while on defendant’s track, not on the highway, but at a point to the left of the same. This was a fatal variance as to the first count, which was for simple negligence; and the trial…
2Cited by3 opinions
- Anniston Electric & Gas Co. v. RosenSupreme Court of Alabama · 1909
- Mobile Light & R. R. v. BakerSupreme Court of Alabama · 1908
- Alabama Great Southern Railway Co. v. McFarlinSupreme Court of Alabama · 1911