Central of Georgia Ry. Co. v. Jones, 70 So. 729

Central of Georgia Ry. Co. v. Jones

70 So. 729 | Ala. | 1915

Lead Opinion

ANDERSON, C. J.

(1) “The doctrine is well settled in this and most of the other states, as well as by the federal courts, that the contributory negligence of one in charge of, or control of, a train, car, or other vehicle, cannot be visited upon a person who is a passenger therein, whether for reward or not, unless the person so riding has charge or control of the vehicle; or over the person who is driving or operating same.” — Birmingham & Tuscaloosa Utilities Co. v. Carpenter, 194 Ala. 141, 69 South. 626; L. & N. R. R. Co. v. Calvert, 170 Ala. 565, 54 South. 184; Birmingham R. R. Co. v. Baker, 132 Ala. 515, 31 South. 618; North Ala. Co. v. Thomas, 164 Ala. 191, 51 South. 418; Elyton Co. v. Mingea, 89 Ala. 421, 7 South. 666. Defendant’s pleas A and B set up negligence on the part of the plaintiff for failing to stop and look and listen, though the horse was being driven by another, and there was no averment that she controlled the driver or the vehicle. The trial court did not err in sustaining the plaintiff’s demurrer to these pleas.

*381(2) Charge 6, refused the defendant (being typical of all as suggested in brief), advances the theory of negligence on the part of the plaintiff for a failure to stop and look and listen, notwithstanding she was not in control of the vehicle or driver, and it was properly refused.

Counsel for appellant cite and quote from authorities supporting the doctrine invoked by these pleas and charges, but they are not in line with the weight of authority and have often been repudiated by this court. — Elyton Land Co. v. Mingea, 89 Ala. 521, 7 South. 666.

The judgment of the city court is affirmed.

Affirmed.

Mayfield, Somerville . and Thomas, JJ., concur.

Rehearing

ON REHEARING.

ANDERSON, C. J.

We do not think that the original opinion misconceives defendant’s pleas A and B, as they, in effect, set up negligence on the part of the plaintiff, who was riding with the driver, and who was not her agent or servant, and over whom she had no control, in that she failed to keep a lookout and to discover the approach of the train in time to warn the driver of the danger or to alight, as the said pleas expressly state that the plaintiff was unaware of the approach of said train. We still think that the pleas attempt to charge the plaintiff with performing the duty of the driver and of negligence for failing to keep a lookout, when it was the duty of the driver to do so and not the plaintiff. Had the plaintiff known of the approach of the train and failed to warn the driver, who was unconscious of the danger, or had she discovered it in time to extricate herself and failed to do so, she could probably not recover under count 1, and the trial court so held by overruling the plaintiff’s demurrers to plea C. Pleas A and B did not charge her with knowledge of the approach of the train, but expressly state that she was unaware of the approach of said train.

The application for rehearing is overruled.