104 Ala. 241 | Ala. | 1893
The plaintiff as administratrix, sued to recover damages for the killing of intestate, alleged to have been .caused by the wrongful negligence of the defendant. The defendant pleaded the general issue, and as a second plea the contributory negligence of the deceased. The plea of contributory negligence was de
So far as the evidence bears upon the question of the right of the conductor to eject the deceased from the car' it is substantially the same as when the case was here' on a former appeal.- L. & N. R. R. Co. v. Johnson, 92 Ala. 204. The conduct of the deceased was reprehensible, his language obscene and insulting, and his refusal to pay his fare, justified the conductor in ejecting him from the car. We feel safe in stating that under the evidence, the death of the deceased was not caused by the car from which he was ejected, nor by any act of violence on the part of the conductor in putting him off. The evidence shows that a freight car running on schedule was following the passenger car, about thirty minutes late, both going north, and that a passenger train was due coming south, several hours late, and a passenger going' north was due forty minutes after the south passenger had passed the place where the body of deceased was found. It was not known certainly that any person had been killed, until discovered by this last passenger train going north, about 2.25 a. m. The evidence shows that deceased was put off at night, that it was very dark, and that he -was put off in a cut, and that' it might have been two hundred yards, either north or south, to the end of the cut. The deceased was familiar with the cut and condition of the adjacent lands, having lived near by for several years. There was room in the cut, by standing near the waffs, for trains to pass, and there were places along the cut where a person could get out from the track. There is no evidence tending to show* that the officers or employés of the defendant, operating the freight train which followed the train from which deceased was ejected, or the subsequent passenger trains, had any notice or knowledge of the peril of deceased. Negligence can not be imputed to them. If there were • no other facts in this case we would declare as matter of law that plaintiff could not recover.
There is another principle of law to be observed which requires of all persons, in.the exercise of a right,' or the performance of duty, that it be done with reasonable regard to the presexwation of life and prevention of great bodily harm or the infliction of unnecessary injury to others, and they will be held responsible for the manner in which the right is exercised or duty per-fox-med. It is an exceptional case, where the law does not subordinate personal rights to the preservation of life. A conductor has the right,, under proper circumstances to eject a passenger from a car, but he would not be justified in exercising this right, while the car was at a high rate of speed, or when upon a high trestle, nor would he be justified in putting off a person who was blind and deaf, knowing his infirmity, except at a safe place. Upon like principles the law would not justify a conductor in putting off a passenger at a time and place and under conditions and circumstances which would expose him unnecessarily to great pex-il of life or bodily harm, and this, too, whether the danger arose from the natural infirmity of the pex’son or was self-imposed. If the conductor did not kxiow of the infirmity of the person, and the peril attending the ejection, there would be no liability arising from the exercise of the right and performance of the duty. It is the fact of notice or-knowledge of the danger on the part of the conductor..
The court did not err in sustaining the objections to the question propounded to Dr. Purdon, as an expert.
The- liability of the defendant is to be determined by the facts of the case, as they were, and appeared to be, to the conductor, in the exercise of reasonable prudence and care as to the condition of deceased at the time he was put off the train. There was no error in sustaining objection to the question to the witness Orr. This witness was asked if deceased was in “a senseless condition,’’whether he“ was stupidly drunk.’ ’ This witness had testified, that he saw deceased in conversation with
Reversed and remanded.