92 Ala. 204 | Ala. | 1890
Appellee, as administratrix, sues to recover damages for the death of A. W. Johnson, alleged to have been caused by the culpable negligence of the employés of defendant. Plaintiff’s intestate having taken passage on a train of defendant, and having wilfully and persistently refused to pay his fare when asked, becoming boisterous and using profane and very obscene language, clearly shown by the evidence, it became the duty of the conductor to protect defendants against such intrusion,, and the passengers against insult and annoyance. The right of the conductor to put him off the train, under such circumstances, does not admit of serious question. By refusing to pay his fare when rightfully demanded, and by his gross misconduct, deceased forfeited all right to remain in the car, and assumed the position of an intruder. The conductor was not required to have consideration for his convenience, and was authorized to stop the train and put him off at any point on the railroad, having reasonable regard for his personal safety. The company owed him no drity other than
The time was about six’ o’clock in the evening, dark and raining. The place at or near the entrance to a cut from two-hundred lo two hundred and fifty yards long, about one mile from Wilhite, a station which the train had just left; also from-the home of the deceased. On the right is a mountain or high hill, and on the left, a creek about twelve feet below and thirty or more feet from the railroad, but sufficient space on each side of the road to enable a person to avoid injury by passing-trains. Between the cut and Wilhite are a trestle and two stock gaps. Deceased was familiar with the locality and the cut. He was intoxicated, but not so drunk as to be unconscious or stupefied; had the use of his mental and physical faculties. There was nothing in his manner to indicate to the conductor that he could not or would not avoid the. danger of a passing train. A train was due about thirty minutes thereafter-, and two others passed during the night. His body was discovered the next morning on the opposite side of the track,, a short distance from where he was put off, badly mangled. He was not injured while, being ejected, or by the train from which he was removed, or by exposure to any perils incident, or peculiar to the time or place, disconnected from the-passing-
Drunkenness has been styled a self imposed disability, and men make themselves drunk at their peril. It does not excuse the omission to use the same care and prudence, which is exacted of a sober man under the same circumstances. “The fact of the intoxication of the injured 'person, at the time of the injury, will not only not relieve from the consequences of his contributory negligence, but, also, if his intoxicated state contributed to the happening of the injury, will be admissible in evidence as proof of contributory negligence.” 2 Am. & Eng. Ency of Law, 751; Co., & Wes. R'way Co. v. Wood, 86 Ala. 164; Beach on Con. Neg., § 146. It appearing that plaintiff’s intestate was not so drunk as to be unconscious of the peril attending the passing of trains, or unable to take care of himself, his drunkenness is not only not excusatory, but tends to show that he contributed to his own injury by placing himself in the position of imminent danger in which lie was found. Had he even remained on the side of the road where he was left, he -would not have been injured.
The degree of intoxication, as also the other facts and circumstances, plainly distinguish this case from the case of Lo., Cin. & Lex. R. R. Co. v. Sullivan, 81 Ky. 624, which is cited and relied on by appellee’s counsel. In that case, the weather was intensely cold, several degrees below zero, the ground covered with snow eight to t.en inches deep, and the person put off stupidly drunk, unable to take care of himself or to travel. The probability was that he would remain wherever put, and the natural consequences that he would freeze, Avhich, in fact, produced his injuries. Putting him off under such circumstances aauis considered gross negligence, and the proximate cause of his injuries. It is said in the opinion, that the force, if not unnecessary, Avas used “under circumstances and at a time when the consequences ordinarily Avould be as injurious as Avhen, in an attempt to remove a trespasser from his dAvelling-house, the owner should shove him from an upper story, or lead him into a pitfall or Avell, or when a person is pushed off a fast moving train,” — reckless or wanton.
Railway Co. v. Balleley, 32 Ohio St. 345; s. c. 30 Am. Rep. 601, is parallel. The party; who Avas drunk but not stupefied or unable to travel, was put off about eight or nine o’clock in
Plaintiff’s intestate being boisterous and unruly, using profane and vulgar language, making himself obnoxious to the other passengers, it was the duty of the conductor not to hesitate, but act promptly, using due discretion and judgment. Not being unconscious or in a stupor, and being familiar with the cut and road, he was bound to know that other trains were expected, and that it would be dangerous to be or remain on the track. If the danger to which he was exposed consisted in his going upon the track, no place could have been found on the side of the road where he would not be exposed to the same danger. Left where passing trains would not injure him, without some intervening agency, if he aftewards wandered on the track and placed himself in a position of peril, it was his
The court should have given the affirmative charge requested by defendant.
Beversed and remanded.