Highland Avenue & Belt Railroad v. Burt

92 Ala. 291 | Ala. | 1890

COLEMAN, J.

The plaintiff sued to recover damages for' personal injury, alleged to have been sustained in consequence of the negligence of the defendant, by moving forward the train upon which she was a passenger, while she was in the act of alighting, and before she had reasonable time to get off.

We regard the law with respect to the duty to be exercised by ordinary railroads, for the safety of passengers getting on and off their trains, as well settled. When the train of an ordinary railroad is brought to a stand still at the proper and usual place for receiving passengers and for permitting passengers to alight, and remains stationary for a reasonably sufficient length of time for this purpose, the duty of the trainmen in this regard has been performed ; but while the performance of this duty may relieve the trainmen from the further duty of seeing and knowing that the passengers are on or off as the case may be, even this would not excuse from culpability, if those in charge of the train in fact saw or knew that its movement would probably imperil a passenger in the act of getting off or on the train, and in disregard of the peril, caused the train to move and thereby inflict injury.—Montgomery & Eufaula Rwy. Co. v. Stewart, 91 Ala. 421; 8 So. Rep. 711, and cases cited; Birmingham Union Railway Co. v. Smith, 90 Ala. 63; Central R. R. & Banking Co. v. Miles, 88 Ala. 262.

The law has also been well settled in regard to the duty of the driver or the person in charge of a horse car, operated for the carriage of passengers. In the latter case, it is the duty off the driver to await a sufficient length of time to enable passengers 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 a movement of the car. If he fail in these respects and injury results from such failure, his employer, is liable.—90 Ala. 63, supra. The reasons for applying a different principle in the case of ordinary railways and horse cars, are fully stated in 8 So. Rep. and 90 Ala. supra.

The case of North Birmingham Street Railway Co. v. Galderwood, 89 Ala. 247, was one in which the passenger cars, were drawn by a dummy engine. Plaintiff testified in that case that she gave the notice to stop by pulling the bell strap,, and upon this signal being given the train stopped. It was ia evidence that, by a rule of the company, passengers 'were-required to motion the conductor when they wished to get off. This much of the evidence is stated to show that the rules of the company in regard to stopping, applicable to ordinary railroads having regular stations, did not apply, but in its management, for the convenience of passengers in regard to stopping, was somewhat similar to that of street horse cars, that is, the train would stop, on being signalled to that effect by the passenger, at any place where a municipal ordinance did not prohibit it. After laying.down the general rule applicable to-ordinary railways, that the stoppage required was for a time reasonably sufficient to enable the passengers to conveniently alight, the court, in 89 Ala., supra, added that “the duty of’ keeping a diligent lookout rested on the engineer and conductor, to see that a premature start of the train, such as might endanger her safety, should not be negligently made.”

Where dummy engines are used for the transportation of passengers, and conductors are - in the control of the cars, and there are no regular stopping places or stations for receiving and putting off passengers, and the conductors are not informed in advance where the passengers desire to alight and can not know how many are expected to alight, when the motion or signal is given to stop, and the rules and conditions for governing such engines and cars for carrying passengers are not-such as to invoke the principles which prevail in ordinary railways, the presumption does not arise that the duty of the conductor is performed, by merely stopping a reasonable length of time, sufficient to enable passengers to get on or off; but in such cases, the same measure of duty is required as that imposed upon the driver of a horse car, that is, he shall inform himself by looking and seeing how many passengers desire and intend to alight, and, in any event, to see and know that no passenger is in the act of alighting, or in a position which would be rendered perilous by putting the car in motion. If, after stopping and waiting a reasonable time for passengers to-get off, the conductor places himself in a position where he can see and know, and there are no indications that others or any desire or intend to alight or get on, the conductor may then cause the car to move, and if passengers, after this, attempt to-get on or off, without further notice to the conductor, and he-has no actual knowledge of their intention and position, they do so at their peril, and not at the peril of the carrier.

The first and second charges requested by defendant relieved the conductor of the duty to take any precaution or steps to inform himself as to whether plaintiff was in the act of alighting at the time he signalled the engineer to go forward. We are not prepared to hold “that a sufficient time to allow the plaintiff to get off ” comes up to the rule declared in repeated decisions of this State, where we have held “that the train must wait a sufficient length of time to enable passengers to alight in safety by the exercise of reasonable diligence,” or “to ■conveniently alight.” The charges asked for to this effect were calculated to mislead in respect to the time the train was required to wait.

The court was not authorized to charge the jury as a matter ■of law, that because two other ladies had alighted with safety, the car had stopped a reasonable time. This may have been matter for legitimate argument before the jury, but did not authorize the legal conclusion. The plaintiff’s testimony tended to show that she arose, for the purpose of getting off, as soon as the train stopped, and that she continued to move" in that direction until she was thrown off by the sudden movement of the car.

The same objection obtains against the fifth charge. This charge also invades the province of the jury. The fourth charge may assert the principle applicable to ordinary railroads, but does not apply to dummy engines, under the facts proven in this case.

The charges given to the jury by the trial court, are in accord with the views of this court, herein expressed.

Affirmed.