55 So. 237 | Ala. | 1911
Lead Opinion
This case ivas before this court at a previous term, and was fully reported. — See L. & N. R. R. Co. v. Seale, 160 Ala. 584, 49 South. 323.
Prom a re-reading of the entire testimony, the court holds that it was for the jury to determine whether or not there was negligence on the part of the conductor in not ascertaining that there was a passenger for D.ean’s Station, and also whether or not the plaintiff was guilty of contributory negligence in not informing the conductor or flagman that she wished to get off at Dean’s Station. Consequently there was no' error in the refusal of the court to give the general charge in favor of the defendant. We do not deem it necessary to examine in detail all of the exceptions taken on minor points.
We have shown above that the evidence is not without conflict on one point, and we may say generally that the questions as to the condition of the ground between the place where the plaintiff got off the train and her home were properly admitted as tending to show the probable result of having to get off where she did and' walk to her home. Several of the- questions asked and objected to were not answered. As to others, the objection was not made until after the question was answered; and,, as to others, the objections were general,, without specifying any grounds. On the whole, we discover.no reversible error..
The questions as to how a conductor would know that he had a passenger for Dean’s do not infringe upon a point in the Perkins Case, 165 Ala. 471, 51 South. 871, and others, as to testifying to the cognitions of another, but merely go to ,a statement as to the facts —what means of knowledge he had; while the question to Mrs. Wood, “Your sister knew,” etc., did and was properly excluded.
The defendant excepted to that portion of the oral charge of the court as follows: “The plaintiff’s contention is that the conductor did not use reasonable diligence in taking up tickets; that after he came into the coach he stopped and conversed with a lady an unnecessary length of time; and that while he was doing this she beckoned to him to let him know that she was going'past her destination, and that he paid no attention to her, but continued to converse with the lady. If you' should believe that, it would not be reasonable diligence if he stopped to gossip with passengers — that would be negligence. The conductor denies this, and says he did not do it, says one lady passenger asked him a question and he replied to' it, and went on. It is for you to say whether that is true or not.” The court then said to the
There was no error in the refusal to give charges B and 0. They imply an obligation on the plaintiff to go on to Spring Junction. — Ala. Gt. So. R. Co. v. Sellers, 93 Ala, 9, 14, 15, 9 South. 375, 30 Am. St. Rep. 17; Southern Railway Co. v. Melton, 158 Ala. 404, 47 South. 1008; L. & N. R. R. Co. v. Seale, 160 Ala. 584, 49 South. 323.
There being no error in the record, the judgment of the court is affirmed.
Affirmed.
Concurrence Opinion
(concurring). — In the absence of a binding (upon a ticket passenger) rule of the carrier requiring such passengers, for known, to such passengers, flag stations, to notify the conductor of the train,
Contributory negligence must he founded on a breach of duty. As I view it, there is no primary duty on the ticket passenger to a. flag station to anticipate that the carrier will not perform its contract and duty with respect to the stopping of its train on which the ticket passenger is en route at the ticket stipulated destination at a flag station. On the contrary, in the absence of countervailing facts or circumstances brought to the knowledge of a ticket passenger, and in the absence of the binding rule before mentioned, such passenger may
These yiews are not in .accord with some of tbe rulings made in this case on former appeal (160 Ala. 584r 588, 49 South. 323) and reflected in the opinion on this appeal.
Holding tbe view of tbe law indicated, I concur in tbe result only.