Carleton v. Central of Georgia, Ry. Co.

46 So. 495 | Ala. | 1908

SIMPSON, J.

This was an action for damages for the wrongful killing of plaintiff’s intestate. It is insisted, first, that the court erred in suustaining the demurrers to the first 10 counts of the complaint. After the sustaining of said demurrers, the plaintiff filed a number of other counts, which substantially state the same cause of action as alleged in said 101 counts, and under which all of the evidence which would be relevant to said 10 original counts could be considered. Consequently, if there was error in sustaining the demurrers to these first 10 counts, it was error without injury.

The court gave the general affirmative charge in favor of the defendant. There was evidence which tended to show that the conductor, or the person who was acting as conductor, ordered the plaintiff’s intestate to leave the car in which he was, and to go into another,, while the train was in rapid motion at night; also that said official canght him by the shonlder, pushed him ont of the door, and shut the door behind him; and that as said intestate went to step across the coupling he fell off. The carrier owes the duty to the passenger to provide a safe place for him to ride, to see that he is treated with respect by its servants, and not to expose him to unnecessary peril. While the law recognizes the right of the carrier to make and enforce reasonable regulations with regard to the cars to be occupied by different classes of passengers, yet, in requiring passengers to pass from one car to another, not only must it be done in a respectful manner, but it must be done at a time and in a way that will not expose the passenger to increased danger.

It is recognized that it is dangerous for a passenger to pass from one car to another while the train is in rapid motion; and while the improvements, in arranging the platforms and vestibnling the cars, has minimized and in some cases done away entirely with the danger of passing from car to car, so that it cannot he said that in every case it is contributory negligence for a passenger to pass from one car to another, or negligence for the conductor to require him to pass from one to another, while the train is in rapid motion, this depends upon the conditions, such as the manner in which the cars are coupled, the speed at which the train is moving, the condition of the track, and whether it is straight or curved, and also upon the condition of the passenger; for, if the passenger is weak or intoxicated, greater caution is suggested. If the conditions were such as to render it dangerous for plaintiff’s intestate to pass from one car to another, and he was either forced or ordered out of the car in which he was riding, by the conductor or some one wbo was acting as conductor, and as a consequence be came to bis death, tbe defendant would be liable. — -2 Hutchinson on Carriers (3d Ed.), pp. 1085, 1323, §§ 950, 1125; 3 Hutchinson on Carriers (3d Ed.) pp. 1398, 1399, 1405, 1408, §§ 1192, 1197; Dougherty v. Yazoo & M. V. R. Co., 84 Miss. 502, 36 South. 699, 700; State v. Maine Cent. R. Co., 81 Me. 84, 92, 16 Atl. 368; L. & N. R. R. Co. v. Kelly, 92 Ind. 371, 374, 375, 47 Am. Hep. 149; McIntyre v. N. Y. Cent. R. Co., 37 N. Y. 287, 288; Worthington v. Cent. Vt. R. Co., 64 Vt. 107, 23 Atl. 590, 15 L. R. A. 326, 330; So. Ry. Co. v. Roebuck, 132 Ala. 412, 31 South. 611; Fox v. Mich. Cent. R. Co., 138 Mich. 433, 101 N. W. 624, 68 L. R. A. 336, 340.

It results that the court erred in giving the general charge, in favor of the defendant.

The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.