Ball v. Mobile Light & Power Co. , 146 Ala. 309 ( 1905 )

DOWDELL, J.

No questions on the pleadings are presented by the record for our consideration. The plea of not guilty was filed to the. complaint, and on this issue alone the case was tried. Upon the conclusion of the plaintiff’s evidence, the defendant offering no testimony, the trial court, at the request of the defendant, gave the general affirmative charge in its favor.

The plaintiff’s evidence showed that the plaintiff ivas a child under four years of age, and at the time of the alleged accident, ivas riding on the defendant’s street railway car, accompanied l>y his mother, who had paid her fare as a passenger on said car. 'No fare had been paid for the child, and in this connection it was competent for the plaintiff to show a. general custom on the part ff the defendant not to charge fare for the carriage of children of plaintiff’s age. And under such circumstances avc think there can be no doubt of the existence of the relationship of passenger and carrier betAveen the child and the defendant. In the present case there was evidence, however, tending to sIioav that the plaintiff Avas a passenger, irrespedWe of proof of a custom above adverted to. Rufus Williamson testified that “there Avere about stwen or eight, passengers on the car, and this little boy, Freddie Ball, Avas one of the passengers.” With this testimony in, the question of passenger vcl non was a question for the jury.

There Avas evidmee tending to sIioav that the car Avas stopped Avith unusual suddenness and a jerk, and by the sudden stopping of the car the child Avas throAvu from the seat, and injured. On this evidence, the question of negligence in the manner of stopping the car by the defendant’s servant aauis one for the determination of the jury, and the court could not say as a matter of law that the defendant’s servant was not guilty of negligence. It follows, therefore, that the court erred in giving the general affirmative charge for the defendant.

Reversed and remanded.

Haralson, Anderson, and Denson, JJ., concur.