Birmingham Railway Light & Power Co. v. Seaborn, 53 So. 241

Birmingham Railway Light & Power Co. v. Seaborn

53 So. 241 | Ala. | 1910

ANDERSON, J.

The duty of a railroad company, as a common carrier of passengers, is not performed until it delivers its passenger in proper condition' at the station-to which he has paid his fare; and where a passenger on a railroad train is carried past his point of destination, it is the duty of those in charge of the train to either back the same to the station, or to notify the passenger how and when to alight, warn him of any dangers incident to alighting at that point, and give him such assistance or instructions as may be necessary to assure his safe return to the station; and if, without the fault of the passenger, he is injured in making his way back to the station, the company is liable therefor.—Hutchison on Carriers, § 1126 (3d Ed.) and note; New York R. R. v. Doane, 115 Ind 435, 17 N. E. 913, 1 L. R. A. 157, 7 Am. St. Rep. 451; Adams v. R. R. Co., 100 Mo. 555, 12 S. W. 637, 13 S. W. 509. This liability onlv arises, however, when the passenger has been wrongfully or negligently carried beyond his destination. If he has been carried beyond his destination, through no wrong or neglect of the servants of the com*662pany, and is safely landed at some other station, the company is not liable for any injuries he may sustain in attempting to return to the proper station, unless, of course, they attempted to transport him back and he was negligently injured. And as no duty would rest upon the defendant to get him back to the station, beyond which he had been carried, through no negligence of the carrier, the act of its servants in advising or directing him as to his return would be gratuitous and for which the company would not be liable.

The gravamen of the present action, therefore, must be predicated upon the negligent taking of the plaintiff beyond her destination, and the misdirection by the defendant’s servants or agents as to a return, and not upon a mere misdirection, not preceded by negligently carrying her beyond her station. The oral charge of the court, excepted to by the appellant, both before and after correction, in effect, instructed that the plaintiff had a cause of action for a negligent misdirection and pretermitted hypothesizing the fact, that she had been negligently carried beyond her destination. It was in the alternative and held the defendant liable if plaintiff was negligently carried beyond her station “or” if the plaintiff was wrongfully misdirected after she got off. The attempted correction did not cure the defect, as it authorized a recovery upon negligence growing out of a misdirection and pretermitted the fact that she must have been negligently carried beyond her destination. This being a misstatement of the law, the error was not a mere misleading statement, which could be explained by written charges, and the cases of Rutledge v. Rowland, 161 Ala. 114, 49 South. 463, and Birmingham R. R. v. Jung, 161 Ala. 461, 49 South. 434, do not apply. The charge in those cases merely, had misleading tendencies, which it was held could have been explained *663by written charges. It would be a very unsafe rule to establish that, if the trial court charges the law incorrectly, but gives a written charge contradicting the oral one, that the error would be cured. The jury would be at sea and would not know which to follow, and experience teaches that they are more apt to heed what the court tells them than the instructions.on the slips given them. This court has often held that, if a written charge is improperly refused, the fact that it is covered in the oral charge will not cure the error.—Snyder v. State, 145 Ala. 36, 40 South. 978; Orr v. State, 117 Ala. 69, 23 South. 696. Nor can an incorrect oral charge be corrected by the giving of a written charge which contradicts it, as the jury would not know which to heed or follow.

The evident purpose of attempting to show that plaintiff knew how often the cars ran was to fasten negligence upon her by not waiting to take a car back, instead of attempting to return on foot, and which was foreign to the pleas of contributory negligence. Moreover, the witness testified that she did not know whether or not another car would be coming back from Ensley that night.

The question to R. L. Seaborn, “What' trestle was there at the time your wife claims to have been hurt?” is so framed as to not put the trial court in error for sustaining the objection to same.

The custom as to what was done with passengers carried beyond their destination was not admissible, especially not in the case at bar, as there was no evidence- that the plaintiff was informed of the custom or of an offer to conform therewith by the defendants servants in this instance.

The true rule as to the right of a witness to refresh his memory by consulting a memorandum, and when the *664memorandum is and is not admissible, is laid down in the case of Acklen v. Hickman, 63 Ala. 498, 35 Am. Rep. 54, and from which we quote: “The law recognizes the right of a witness to consult memoranda in aid of his recollection, under two conditions: First, when, after examining a memorandum made by himself, or known and recognized by him as stating the facts truly, his memory is thereby so refreshed that he can testify, as matter of independent recollection, to facts pertinent to the issue. In cases of this class, the witness testifies to what he asserts are facts within his own knowledge; and the only distinguishing difference between testimony thus given, and ordinary evidence of facts, is that the witness, by invoking the assistance of the memorandum, admits that, without such assistance, his recollection of the transaction he testifies to had become more or less obscured. In the cases falling within this class, the memorandum is not thereby made evidence in the cause, and its contents are not made known to the jury, unless opposing counsel call out the same on cross-examination. This he may do, for the purpose of testing its sufficiency to revive a faded or fading recollection, if for no other reason. In the second class are embraced cases in which the witness, after examining the memorandum, cannot testify to an existing knowledge of the fact, independent of the memorandum; in other words, cases in which the memorandum fails to refresh and revive the recollection, and thus constitute it present knowledge. If the evidence of knowledge proceed no further than this, neither the memorandum, nor the testimony of the witness, can go before the jury. If, however, the witness go further, and testify that, at or about the time the memorandum was made, he knew its contents, and knew them to be true, this legalizes and- lets in both the testimony of the witness and the memoran*665dum. The two are the equivalent of a present, positive statement of the witness, affirming the truth of the contents of the memorandum.” — 1 Greenl. Ev. §§ 436, 437; Bondurant v. Bank, 7 Ala. 830.

The foregoing rule has been subsequently approved in the cases of Home Insurance Co. v. Adler, 71 Ala. 527, and Snodgrass v. Caldwell, 90 Ala. 323, 7 South. 834. Applying the rule to the testimony of Kendricks, who made the entries in the trip sheet and knew that they were correct at the time, but could not testify independent of the trip sheets, his testimony in connection with the trip sheets should have let it in as evidence. The same rule should be applied as to testimony and trip sheets of other conductors, upon the next trial.

Charges 4 and 5 given at the request of the plaintiff could have well been refused. If not otherwise bad, they invade the province of the jury and are calculated to mislead.

Charge 8, requested by the defendant, was properly refused. It invaded the province of the jury.

For the errors heretofore suggested, the judgment of the city court is reversed and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson and Sayre, JJ., concur.