51 So. 565 | Ala. | 1910
— Plaintiff sited as a passenger. The case was tried on the general issue, there being no plea of contributory negligence. Plaintiff was standing upon the platform of the moving train, and, according to his version of what happened, he had just released his hold upon the railing, and turned to go into the door, when a lurch of the car as it moved around a curve caused him to fall to the ground, with the result that he received the injuries complained of. It does not appear that there was anything out of the ordinary in the operation of the train, or that it was operated in a way which could have caused injury to a passenger not exposed to danger by being on the platform as Avas the plaintiff.
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. In Georgia Pacific v. Love, 91 Ala. 432, 8 South. 714, 24 Am. St. Rep. 927, this court, limiting the application of certain expressions used in Louisville & Nashville v. Jones, 83 Ala.
Assuming, for the argument, that plaintiff received his injuries by being thrown from the platform of the train by a lurch or jerk no more violent than the lurching or jerking of trains commonly known to be a necessary incident to their rapid movement when operated
The first- and second of the counts submitted to the jury, alleging negligence generally as to the manner in which the defendant conducted its business as a carrier —a method of allegation approved by a long line of cases in this state — it seems to be conceded, are broad enough to cover negligence of the defendant’s conductor in requiring plaintiff to leave the coach and stand upon the platform; nor were there in these counts allegations of specific negligence of a different sort to exclude proof of negligence of the particular, character just referred to. The court-, with the consent of the plaintiff, charged the jury as follows: “I charge you that the burden of proof is on the plaintiff to establish to your reasonable satisfaction that he was thrown or fell from the train of the defendant by reason of the negligent manner in which the train was handled or managed; and, unless he has so reasonably satisfied you by' the evidence, your verdict must be for the defendant.” Appellant construes this charge to have meant that the negligence of the conductor, assuming that the jury found there, was such negligence, in requiring the plaintiff to go upon the platform, was not negligence in the handling or management of the train, and the effect of its contention is that a consistent ruling on the part of the trial court would have resulted in the general affirmative charge for the defendant as to counts 1 and 2. But we think the appellant misconstrues the charge, and that its argument looks rather more critically at the complaint than a practical administration of justice can be made to tolerate. Appellant was operating its train for the transportation of plaintiff as a passenger. If, in the course of doing that, it negligently caused plaintiff to take a place, on the train where he
C'ount 3 of the complaint, to state its effect briefly, alleges the duty on the part of defendant to furnish sufficient cars for the transportation of the passengers it undertook to carry', and complains that defendant failed to furnish to him, its passenger, a safe place in which to travel, with the result that plaintiff was caused by its negligent conduct in that regard to be in an unsafe place, to wit, on the platform. The insistence for appellant is that the negligence here counted on is predicated entirely of the defendant’s failure to furnish a safe place in which to travel; whereas the negligence shown, if any, was the negligence of the conductor in requiring the plaintiff to surrender the safe place he had inside the coach and to occupy an unsafe place. In short, the argument is that there was a variance between allegation and proof. But this argument hardly meets the merits of the case. It assumes, without sufficient warrant, not only that the inside of the car, where plaintiff was able to stand,, was, under the conditions obtaining, a safe place, for the sole reason that plaintiff was not, while so standing, liable to the particular peril of being thrown from the car, but that, if plaintiff, under the pressure of an overcrowded car and an order from the conductor, took his place-upon the
We need not discuss the evidence pro and con in response to appellant’s contention that the trial court ought to have granted its motion for a new trial. The principles controlling the cause in this respect were so well settled in Cobb v. Malone, 92 Ala. 633, 9 South. 738, and that case has been so often quoted and followed, as to leave no occasion for further statement. It is to be conceded that appellant’s evidence to estab
What has been said will suffice to disclose our opinion that tbe judgment of tbe court below should be affirmed.
Affirmed.