L. & N. R. R. v. Glascow, 60 So. 102

60 So. 102 | Ala. | 1912

ANDERSON, J.

There can be no doubt of the soundness of the proposition that, when a plaintiff sues for injuries sustained upon the track or premises of the defendant and relies upon simple -negligence, he must by proper averment set up tbe relationship between him and the defendant, and show that he is not a trespasser and is entitled to recover for the simple negligence as charged. Counts 4 and 5, however, aver such a relationship as to warrant the plaintiff in recovering for the simple negligence there charged. They charge that the plaintiff was rightfully on the defendant’s premises at or near a station where he had gone for the purpose of taking passage upon defendant’s train, which was then due or about due. If the complaint only stated that he was rightfully there, this might be a mere conclusion; but it further shows why and wherein he Avas rightfully there by the further averment that he had gone there to take passage upon the defendant’s north-bound train, then due or about due. Nor did the counts have to set up the instrumentality of the injury or the quo modo. There was no error in overruling the demurrer to counts 4 and 5.

A person standing at or near a station aAvaiting his train is not guilty of contributory negligence by standing near the track, unless he gets so close thereto as to be struck by an ordinary train. In other words, if he stands far enough off to escape a train of ordinary width, but happens to be struck by something that projects therefrom, or is thrown or falls therefrom, he cannot be deemed guilty of contributory negligence.— Denison & S. R. R. v. Craig, 35 Tex. Civ. App. 548, 80 S. W. 865. Pleas 6, 7, 9, 11, 12, and 14, if not otherwise bad, fail to show a causal connection between the negligence charged and the cause of the injury. They charge the plaintiff with standing dangerously near the track, but do not show that he was struck by the passing train, or that the position as taken by the plaintiff Avas dangerous as against a natural or ordinary passing train. N,an constat the plaintiff may have been standing as the pleas charge, but was not struck by the approaching train, and may have béen a perfectly safe distance therefrom, and. was only injured because of abnormal conditions, or by some instrumentality other than the approaching train.

“The relationship of carrier and passenger is dependent upon the existence of a contract of carriage, express or implied, between the carrier and passenger, made by themselves or their respective agents; and this relation begins when a person puts himself in the care of the carrier, or directly within its control, with the bona fide intention of becoming a passenger, and is accepted as such by the carrier. There is, however, seldom any formal act of delivery of the passenger’s person into the care of the carrier, or of acceptance by the carrier of one who presents himself for transportation; hence the existence of the relationship is generally to be implied from the attendant circumstances. But it is undoubtedly the rule that these circumstances must be such as to warrant the implication that one has offered himself to be carried, and the offer has been accepted by the carrier. And this, of course, necessarily involves the existence of the fact that the person must signify his intention to take passage, either by words or conduct, and those in charge of the car must assent by words or conduct to his becoming a passenger.” — Ala. City R. R. v. Bates, 149 Ala. 490, 43 South. 99, and cases there cited; Id., 155 Ala. 348, 46 South. 776. While the foregoing is the general definition and rule as to the. relationship of passenger and carrier, the Books hold that it is the duty of the carrier to provide safe and convenient stations, and means of ingress to and egress from its cars; and if a person has the bona fide intention of taking passage by train, and goes to a station at a reasonable time, he is entitled to protection in these respects, as a passenger, from the moment he enters the carrier’s premises. — North Birmingham R. R. Co. v. Liddicoat, 99 Ala. 545, 13 South. 18; Hutchinson on Carriers, § 1011. Says Mr. Elliott, in his work on Railroads (section 1579) : “We think it safe to say that a person becomes a passenger when, intending to take passage, he enters a place provided for the reception of passengers, as a depot, waiting-room, or the like, at a time when such a place is open for the reception of persons intending to take passage on the trains of the company.” We may add that when a person goes to a flag station, and occupies a place or platform, placed there by the carrier for the reception of passengers, within a short time prior to the expected arrival of a train, which he has the bona fide purpose to take, he thereby becomes to all intents and purposes a passenger, and entitled at least to the protection as such from all injuries that may arise from passing trains. — Railroad Co. v. Reynolds, 71 S. W. 516, 24 Ky. Law Rep. 1402, 71 S. W. 516; Railroad Co. v. Rhodes, 86 Fed. 422, 30 C. C. A. 157. This is upon the theory of an implied contract; that is, the party goes to the station at a time when invited to do so for the purpose of taking a train, and the jury can well infer a contract and presentation for carriage, and an implied acceptance by the carrier growing out of the presentation of the person at the place prepared for his reception and at a time for taking passage on the expected train.

We do not understand this holding to be contrary to the general rule, or in conflict with the Bates Case, 149 Ala. 487, 43 South. 98. It is true that a part of the oral charge there excepted to, and held to be bad, related to a person at a station for the purpose of being carried upon the cars from one point to another; but this was in the alternative with another part of the charge with reference to a person hoarding a car, or who is attempting to hoard a car and which pretermitted an acceptance express or implied. Moreover, the charge did not state that the party must be there within a reasonable time before the approach or departure of the train he expected to board, or that there was a house, depot platform, or anything else for the reception of passengers. This seems to have been a trolley line, and the car may have been stationary at a regular stopping-place for the reception of passengers,- and yet there may have been no particular place or structure fixed there by the carrier for the reception of passengers— not such a place provided as would operate as an implied invitation to come there, or an implied acceptance of them if they reached there just in time to board the car then due or expected. Again, it has been held in well-considered cases that the general rule, to the effect that persons who have come upon the premises of the railroad company with the expectation of becoming passengers, and are proceeding in the proper and normal way to take a train, are passengers, is evidently not applicable to the same extent in the case of street railways, where the company has no station. —Duchemin v. Boston Railway, 186 Mass. 353, 71 N. E. 780, 66 L. R. A. 980, 104 Am. St. Rep. 580, 1 Ann. Cas. 603, and cases cited in note on page 606. There was proof that the plaintiff went to Saginaw, a flag-station, on the defendant's road, for the bona fide purpose of taking the north-bound train, then about due, and while standing at a point, elevated with rock or other substance, placed there for the purpose of making it the place for people to take or get off the train, and where passengers were received and deposited, and was then and there injured as the result of a collision between a loose piece of iron or fireman’s rake on the defendant’s pay train with, a mail sack hanging on the crane. These facts, if true, made it a question for the jury as to whether or not the plaintiff was a passenger at the time he was injured, and the trial court properly refused all peremptory instruction that he was not a passenger as set up in the first count of the complaint.

There was evidence from which the jury could well infer negligence on the part of the defendant’s servants and which proximately caused the injury to the plaintiff, and the defendant was not entitled to the general charge. Nor was the defendant entitled to the general charge upon the doctrine of contributory negligence, as the plaintiff was standing where he was invited to stand, and while he may have gone close to the track when “Aldrich” signaled the train then approaching, he testified that after they discovered that the pay train, which they thought was the passenger train, was not going to stop, and before it reached the station he stepped back 12 or 15 feet, where he was standing when hurt. Moreover, he was not struck by the passing train, but a substance, either the iron part of the mail sack, or the fireman’s rake, or piece of iron found on the ground; the theory being that the iron projected from the train and collided with the mail sack, then attached to the crane, as the train went dashing by, and that both of them went with great velocity along the track before striking the ground and one or the other struck the plaintiff on the lower leg, inflicting a painful and serious injury.

Charges C, D, and E, given for the plaintiff, assert the law, nor were they abstract, as there was evidence from which the jury could infer that the plaintiff was a passenger, though, if abstract, thé giving of same would not necessarily be reversible error.

Charges A and B merely instruct that the jury would be- authorized to find that the defendant was guilty of negligence, if they find the existence of the facts therein hypothesized, and which said facts were in evidence. Nor were said charges bad for pretermitting that the negligence must have been the proximate cause of the injury, as they merely charged as to what would constitute negligence, and did not instruct a finding for the plaintiff. These charges are quite different from charge 3, which was held bad, in the case of Birmingham R. R. Co. v. Jones, 146 Ala. 277, 41 South. 146.

There was no error in refusing charge 25, requested by the defendant. If not otherwise bad, it was erroneous and misleading in instructing that plaintiff would be a trespasser while standing on the elevation furnished and prepared for receiving and depositing passengers, unless it was also intended that said place was to be used as a waiting place. If the defendant fixed this place for passengers to get on and off the trains, they would not be trespassers for standing there just before the arrival or departure of trains, whether it was prepared for a waiting place or not.

The trial court committed no reversible error in ruling upon the evidence, and a comment upon same can serve no good purpose.

We are not prepared to say that the verdict was plainly and palpably contrary to the weight of the evidence, as there were many positive facts, as well as circumstances, tending to show that the plaintiff was struck with some hard instrument contemporaneous with the passing of the defendant’s pay train, that something on said train collided with the sack on the mail crane, and that either the mail sack or the projectile which struck said sack fell against the plaintiff’s lower leg. This theory is much more plausible than the suggestion that plaintiff stumbled or fell and hurt Ms leg on tbe ground, which said suggestion avus refuted by witnesses.

The trial court did not err in refusing the motion for a new trial. The judgment of the circuit court is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.