71 So. 620 | Ala. Ct. App. | 1916
Appellee, plaintiff below, brought her action on the case to recover damages for personal injuries sustained by her while a passenger on one of appellant’s trains.
The words, “negligently permitted said aisle of said car to become obstructed by said suit case,” sufficiently aver a breach of duty, and bring count B within the influence of Birmingham Ry., L. & P. Co. v. Weathers, 164 Ala. 23, 51 South. 303; and the demurrers were properly overruled.
Other assignments present a more serious question. There were but two witnesses, plaintiff and her daughter, Ruth Johnson. Their testimony was without conflict, and was substantially to the effect that plaintiff and her daughter boarded appellant’s train at Collinsville, 9:05, on the morning of September 7th, Labor Day, bound for Irondale, a suburb of Birmingham. The conductor was upon the ground and assisted them up the steps. The car was crowded and as they proceeded down the aisle to get a seat plaintiff tripped over a dress suit case or valise and injured herself. Nothing appears from the record to show how long the dress suit case had remained in the aisle, nor who put it there, nor does it appear whether any of the servants of defendant were in the car at or shortly before the time of the accident. The case was allowed to go to the jury on the theory
But the same learned judge, delivering the opinion in L. & N. R. R. Co. v. Jones, supra, afterwards qualified his deliverance in that case, saying: “The extract copied above from L. & N. R. R. Co. v. Jones, although correct in that case and in many others, is not of universal application. See Hutchinson on Carriers, §§ 799-801; Railway Accident Law, section 376. The principle is, perhaps, stated too broadly.”—Ga. Pac. Ry. Co. v. Love, 91 Ala. 432, 8 South. 714, 24 Am. St. Rep. 927.
And likewise the same learned judge who quoted with approval the rule in L. & N. R. R. Co. v. Jones, supra, in the case of Birmingham Ry., L. & P. Co. v. McCurdy, supra, should not be understood as having stated such rule as of universal application, for in Central of Georgia Ry. Co. v. Brown, 165 Ala. 495, 51 South. 565, he expressly points out that: “Not in every case of injury to a passenger does a presumption of negligence on the part of the carrier arise from the happening of the injury.”
Mr. Hutchinson in his work on Carriers, § 1412, says: “The obligation of the carrier of passengers being to exercise the utmost care and diligence for their safety, it is frequently stated as a rule of evidence, in cases resting upon the question of his negligence, that proof of the accident and of the injury to the passenger thereby, without more, at once creates the presumption of negligence, which it becomes incumbent upon him to rebut. This, however, is hardly a correct statement of the law. The mere happening of the accident, aside from the circumstances by which it has been occasioned or attended, may, in every case, be consistent with the exercise of the highest degree of care and circumspection. Carriers of passengers cannot be held liable for the consequences of accidents against which no human care or foresight could have provided; and, if nothing be shown further than that an accident has happened to his vehicle, from which a passenger had sustained an injury, for aught that would appear, it may have happened from some cause for which the carrier
In the case of Stimson v. Milwaukee, L. S. & W. Ry. Co., 75 Wis. 381, 44 N. W. 748, the facts were almost identical with the instant ease. The • appellate court in affirming a judgment of nonsuit said: “It is alleged that the learned circuit judge erred in holding that there was no evidence tending to show negligence on the part of the company. It is plain that it is the duty of the company to see that the aisles of their cars are not obstructed, either by satchels or any other thing, in such a way as to endanger the safety of passengers entering or leaving such cars. This proposition must be admitted to be true, so far as to compel the company and its employees to use due care and diligence in keeping the aisles of the cars unobstructed. The question in this case is whether, upon the evidence given on the trial, it raises a presumption that there was any want of care or diligence on the part of the company or its employees in not discovering and removing the obstruction in question. * * * The rule stated in these cases is that ‘there must be reasonable evidence of negligence, but where the thing [meaning the thing causing the injury] is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the •absence of explanation by the defendant, that the accident arose from want of care.’ In the case at bar the thing which obstructed the passage in the car was evidently personal baggage of some passenger, and not a thing exclusively under the control or management of the employees of the company; and so the mere fact that it was in the aisle or passageway of the car at the ■exact time of the accident does not, of itself, raise a presumption of negligence on the part of the employees of the company. There may be a duty on the part of the employees of the company to remove the personal baggage of passengers from the passageways of the cars, but, in order to make it their duty to act, theré must be evidence showing, or at least tending to show, that such ■employees had notice of such obstruction being in the aisle or passageway, or that it had remained there so long before the accident that, in a reasonably vigilant discharge of their duties,
Again in the case of Burns v. Penna. R. R. Co., 233 Pa. 304, 82 Ann. Cas. 1913B, 811, it is said:
“Under these facts, there was no presumption of negligence. The rule is that where a passenger is injured by anything done or left undone by the carrier, or its employees, in connection with the appliances of transportation, or in the conduct and management of the business relating to the same, the burden of proof is upon the carrier to show that such injury did not result from the negligence. But to cast this burden upon the carrier, it must be*565 shown that the injury complained of resulted from something improper or unsafe in the conduct of the business or in the appliances of transportation.—Thomas v. R. R. Co., 148 Pa. 180 [23 Atl. 989, 15 L. R. A. 416] ; Ginn v. R. R. Co., 220 Pa. 552 [69 Atl. 992] ; Sutton v. R. R. Co., 230 Pa. 523 [79 Atl. 719.] The appliances of transportation referred to in these cases mean the roadbed, tracks, cars, engines, and all other machinery and equipment furnished by the railroad company and used in connection with the conduct and management of its business. A dress suit case belonging to a passenger is not such an appliance. * * * The mere fact that the personal baggage of a passenger is in the aisle of a car at the exact time of the accident does not, of itself, raise a presumption of negligence on the part of the employees of the railroad company. While it, no doubt, is the duty of the employees of a railroad company to remove the personal baggage* of passengers from the aisles of cars, they must, in order to make it their duty to act, have notice that such obstructions are in the aisle, or the obstruction must have remained there for so long a time before the accident that, in the exercise of due care, they would have discovered it before the accident occurred.”
Our attention is invited by appellee to the case of Besier v. Cincinnati, N. O. & T. P. Ry. Co., 152 Ky. 522, 153 S. W. 742, 43 L. R. A. (N. S.) 1050. There the court uses this language: “We are not prepared to hold that the evidence will allow the appellant to recover on the ground that appellee was guilty of negligence in allowing the valise to remain in the aisle until she was injured by falling over it; for, according to Booth, who alone testified on that point, the valise did not remain in the aisle where it was placed by the owner more than five minutes before the accident occurred, and, as shown by all the testimony, during that interval the conductor and brakeman of the train were not in the car at all, but were on the outside of the train, directing and assisting passengers to get thereon. Being thus engaged in the performance of their necessary duties, it is manifest that they did not know, and by the exercise of ordinary care could not have known, of the obstruction of the aisle by the valise.”
It is true the plaintiff testified that the car was very much crowded, and necessary made somewhat dark.” She also testified that it was 9:05 in the morning when she boarded the train; and appellee urges for our consideration whether a reasonable inference may not be drawn that the servants of appellant failed to
There was no evidence that the car was entering a tunnel or under a shed, and it will hardly be seriously contended that the utmost degree of human care and foresight would have suggested #the precaution of lighting the lamps at 9 a. m. to relieve the somewhat darkened condition of a crowded car.
It follows from what we have said that, there being no presumption or inference of negligence attributable to appellant, the trial court was in error in refusing to give the general affirmative as requested by appellant both as to counts A and B. A judgment will accordingly be entered, reversing and remanding the cause.
Reversed and remanded.