Birmingham Union Railway Co. v. Smith

| Ala. | Nov 15, 1890

McOLELLAN, J.

The exceptions reserved go to the action of the trial court in refusing to give five charges requested by the defendant below. Of these the first, second and third were abstract. We find no evidence in the record tending to show “that the moment the plaintiff started to get off the car was simultaneous with the starting of the car,” or “that the oar was in motion when the plaintiff attempted to get off the car;” and these are the facts upon which these charges based defendant’s right to a verdict. On the contrary, plaintiff’s evidence tended to show that the car was standing still when she attempted to get off, and was started forward “with a jerk” when that attempt had been so far executed as that she was in the act of stepping off, having one foot on the step, and the other approaching, if it had not touched the ground; and the evidence of defendant tended to shoiv that plaintiff was entirely off and free from the car before it was again started.

The fourth and fifth charges, requested by defendant, and refused, present the real question involved on this appeal. They are as follows: (4.) “If the car was stopped a sufficient length of time for the plaintiff to get off the car, by the exercise of ordinary diligence, then you must find for the defendant, unless you believe from the evidence that the driver started the car in motion while the plaintiff was getting off the car, and knew she was getting off the car when he started the car.” (5.) “If the defendant’s car was stopped for a reasonable length of time, sufficient to have permitted the plaintiff to have gotten off' safely by the exercise of reasonable diligence on her part, then you must find for the defendant, unless the evidence shows that defendant’s car-driver knew, or had good reason to know, that plaintiff was in the act of getting off the car, or in a place of danger, when he started the car.”

The doctrine of these charges, certainly as formulated in the last charge quoted, is thoroughly well established with respect to the ordinary railways of the country.—Raben v. Central Iowa Railway Co., 33 Amer. & Eng. R. R. Cases, 520, and cases cited; Strauss v. C. St. J. & C. B. R. R. Co., 27 Amer. & Eng. R. R. Cases, 170; s. c., 75 Mo. 175; 86 Mo. 421" court="Mo." date_filed="1885-04-15" href="https://app.midpage.ai/document/straus-v-kansas-city-st-joseph--council-bluffs-railroad-8008396?utm_source=webapp" opinion_id="8008396">86 Mo. 421; G. C. & S. F. R. R. Co. v. Williams, 8 S.W. 78" court="Tex." date_filed="1888-02-28" href="https://app.midpage.ai/document/gulf-colorado--santa-fe-railway-co-v-williams-4895648?utm_source=webapp" opinion_id="4895648">8 S. W. Rep. 78; Pennsylvania R. R. Co. v. Peters, 30 Amer. & Eng. R. R. Cases, 607-614.

Trains on such railroads are run on schedules. They stop only at designated stations, to receive and discharge passengers. The conductor knows in advance how many passengers are to alight at a given station. He may therefore determine with sufficient accuracy what would be a reasonable time for the train to stop to enable passengers for that station to alight, by the exercise of ordinary diligence on their part. The law, therefore, imposes on him the duty of holding the train for such reasonably sufficient time. It is not practicable for him to keep a watch upon all the exits from a train of cars. Not infrequently he has other things to do at stations where his train stops. The law, therefore, does not impose on him the duty of seeing and knowing that all of the passsengers, intending so to do, have alighted. Unless he knows, or has good reason to believe to the contrary, he may act upon the presumption that passengers have availed themselves of the ample time allowed, and gotten off the train. These reasons, which support the proposition of the fifth charge, as to cross country steam railways, do not obtain with respect to a horse-car railway. They have no stations, no regular stopping places, no schedules. The driver can not know beforehand where any passenger intends to alight, or how many passengers desire to get off at any place where he is signaled to stop. When he is signaled to stop, he must then inform himself by looking and seeing as to how many of his passengers desire and intend to alight. Without this he can have no conception of the length of time the car should remain stationary. Having rendered his car immovable by applying the brakes, he has nothing else to do than to see who intend getting off, and to know that they are safely off before the car is again started. It is entirely practicable for him to do this. The only exits are under his immediate observation, and there is no other duty incumbent on him at the time to divert his attention, from them and the alighting passengers.

Our opinion is, that it is the duty of the driver of a horse car, when signaled to stop, at least, to ascertain who and how many of his passengers intend to alight at that place,to wait a. sufficient length of time to enable them to alight in safety by the exercise of reasonable diligence, and, in any event, to see and know that no passenger is in the act of alighting, or is otherwise in a position which would be rendered perilous by the motion of the car, when he again puts the car in motion. If he fail in any of these respects, and injury results from such failure, his employer is liable. — Thompson on Carriers, p. 443; Poulin v. B. & S. Av. R. R. Co., 61 N.Y. 621" court="NY" date_filed="1874-09-05" href="https://app.midpage.ai/document/poulin-v--broadway-and-seventh-avenue-railroad-company-3604557?utm_source=webapp" opinion_id="3604557">61 N. Y. 621; Nichols v. S. Av. R. R. Co., 38 N.Y. 131" court="NY" date_filed="1868-03-05" href="https://app.midpage.ai/document/nichols-v--sixth-avenue-rr-co-3586866?utm_source=webapp" opinion_id="3586866">38 N. Y. 131; Chicago City Railway Co. v. Mumford, 3 Amer. & Eng. R. R. Cases, 312-315. See, also, N. B. St. R. R. Co. v. Calderwood, 7 So. Rep. 360; 89 Ala. 247" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/north-birmingham-street-railway-co-v-calderwood-6513824?utm_source=webapp" opinion_id="6513824">89 Ala. 247.

Charges 4 and 5 were, therefore, properly refused; and the judgment is affirmed.