101 F.2d 175 | 5th Cir. | 1939
Appellee, Roy Alsup, brought this suit against Alabama Great Southern Railroad Co. and Oscar Sims, one of that company’s employees, to recover damages for personal injuries, incurred while a passenger. The case was tried to a jury and resulted" in a verdict of $5,000, against both defendants, upon which judgment was entered.
Error is assigned to the refusal of a directed verdict for defendants and to portions of the charge of the court. These assignments may be considered together.
The case was submitted on conflicting evidence but there is enough testimony in the record, which, if believed by the jury, would tend to show the following facts.
On September 2, 1936, Alsup suffered an oblique fracture of the femur of his left leg, about midway between the knee
The entire charge of the court is in the record.' It fairly 'submitted the issues to the ‘jury. The excerpts from the charge made the basis of assignments of error do not adequately reflect the charge on -the law as a whole. In substance, the court charged that plaintiff was a passenger until he alighted from the train and had a reasonable time to get off the premises of the company; that it was the duty of the railroad to exercise a High degree of care for the safety of its passengers; that the railroad was not required to assist every passenger but if the circumstances were such that a high degree of care required assistance of a passenger who was ill it was the duty of the railroad to afford him such assistance, if it knew of his condition; that if the railroad had undertaken to perform the duty of assisting Alsup from the train and Sims caused the two men to assist him, if through the negligence of one of them Alsup was injured as a proximate result thereof, he was entitled to recover; that it was the province of the jury to determine from all the facts and circumstances of the case whether the railroad had performed its duty.
The testimony tending to show that Alsup’s leg was rebroken as a result of the accident is somewhat weak but sufficient to support the hypothesis that it probably resulted therefrom. Aside from that the evidence leaves no doubt that the accident occurred while Alsup still had the status of a passenger and, as a result thereof, he suffered great pain. That of itself would support a verdict.
It is well settled that a railroad, while -not an absolute insurer, owes the highest duty to provide for the safety of its passengers, including safe means of
We find no error in the refusal of the court to direct a verdict for appellant Alabama Great Southern Railroad Co., nor in the charge to the jury. However, there is nothing in the record to show that Sims was guilty of negligence contributing to Alsup’s injuries. The men who assisted him in removing Alsup from the baggage car must be considered as acting for the railroad and not as his personal servants. No doubt Sims was considered by the court and all parties to the suit as more or less a nominal party. Nevertheless, he was entitled to a directed verdict.
Other errors assigned are without merit and require no discussion. The judgment will be affirmed on the appeal of Alabama Great Southern Railroad and reversed as to Oscar Sims. The cause will be remanded for further proceedings only as to the liability of Sims.