Ricketts v. Birmingham Street Railway Co. , 85 Ala. 600 ( 1888 )

OLOPTON, J.

Appellant brings the action to recover for injuries suffered by being struck by a street car, in which he had been transported as a passenger, and which he was then leaving. The complaint avers that the defendant, being a corporation incorporated under the laws of Alabama, was the owner of the street railway, over which the car was being run. The defendant does not dispute having, at one time owned and operated the street railway, but seeks to avoid responsibility by alleging that, about a month previous to the injury, it sold the railway to another corporation, which was operating it at the time. To establish this defense, the defendant was allowed to prove by the witness Thompson, that the Pratt Mines Company was, at the time of the injury, March 4, 1887, the owner of, and operating the street railway, and that he (witness) knew the fact from having seen the written contract of sale, to which he was a party, which sale was made February 4, 1887. The testimony of the witness goes beyond proof of the mere execution of the contract, to the extent that its effect was to transfer the ownership to the purchasing company, which involved the opinion of the witness as to the legal effect of the contract. — Shorter v. Shepherd, 33 Ala. 648. The ownership of personal property, which may be transferred without writing, may be proved as a fact, without producing the contract of sale, though in writing, when the question is incidental or collateral. But it is a familiar principle, that parol evidence is inadmissible in reference to contracts required by law to be in writing. — Jonas v. Field, 83 Ala. 445; Lecroy v. Wiggins, 31 Ala. 13. The title to realty can be transferred only by written instrument. Possession, accompanied by acts of ownership, may be proved, and constitute prima facie evidence of title; but, when the parol evidence extends beyond this, and it appears that the knowledge of the witness is derived from a written contract respecting real estate, such contract must be produced, or its absence accounted for. — Patterson v. Kicker, 72 Ala. 406; Hussey v. Roquemore, 27 Ala. 281; Bell v. Davidson, 56 Ala. 444.

The declarations of Morris, the president of the defendant corporation, are not shown to have been made while he was in the performance of his duties as such officer, or while acting for the company, or while transacting any business contemporaneous with the declarations, which they serve to elucidate or explain. The declarations were not within the scope of his authority, and are not binding on the defendant. — Danner L. & L. Co. v. Stonewall Ins. Co., 77 Ala. 184; Smith v. Plank-road Co., 30 Ala. 650.

The question as to the power of the corporation to alienate its rights to use the real and personal property necessary to accomplish the objects of its creation, and also its powers of control and supervision, so as to avoid responsibility for the manner in which the railway is managed and operated, arises on a charge requested by plaintiff, which is not shown to have been in writing, as required by the statute. It has been repeatedly held, that the judgment of the court below will not be reversed for a refusal to give a charge requested, unless it affirmatively appears that it was asked in writing. The charge can not be properly considered by us. The same observation applies to the other charges asked by plaintiff.— Winslow v. State, 76 Ala. 42; Wheeliss v. Rhodes, 70 Ala. 419; Crosby v. Hutchinson, 53 Ala. 5.

There can be no question, that the plaintiff was guilty of negligence, which proximately contributed to his injury, if he was standing on the steps in front of the car, with a keg of lead in his hands, when the car was started forward, and without necessity undertook, while the car was in motion, to step off on the ground, and would not have been injured if he had remained on the steps. Stepping from a moving cai’, without necessity, when injury is caused thereby, which could have been avoided by remaining on the car — by the exercise of ordinary care — is negligence, which will defeat a recovery because of prior negligence of the agents or servants of the company. — Central R. R. & Banking Co. v. Letcher, 69 Ala. 106; Thompson v. Duncan, 76 Ala. 334. It is true, that the bill of exceptions does not set forth any evidence from which the facts stated in the charge may be inferred; and if there was no such evidence, the charge is erroneous. But, the bill of exceptions does not purport to set out all the evidence, and we must presume that there was sufficient on which to predicate the charge.

Important franchises are conferred, and duties imposed, by the charter and general law, upon the defendant as a street railway corporation. From the performance of these duties, it can not absolve itself by a voluntary surrender, without legislative consent, of the whole of its property and franchises, to another corporation. Notwithstanding such transfer may have been made, if it was without legislative authority, the defendant remained liable for injuries caused by the negligence of the servants or employees of the transferree, the same as though itself was operating the railway. Railroad Co. v. Brown, 17 Wall. 445. In such case, both companies are responsible. In view of the evidence tending to show that the defendant had transferred the ownership and operation of the railway prior to the injury, it was not incumbent on plaintiff, in order to entitle him to recover, to show that the defendant was actually operating the road at the time of the injury. In this aspect of the case, the proper inquiry relates to the legality and validity of the transfer. The charges, which impose upon plaintiff the necessity to show that the railway was actually operated by the defendant at the time of the injury, were calculated to mislead. — 2 Wood’s Railway Law, § 490.

Beversed and remanded.