93 Ala. 356 | Ala. | 1890
— Railroads are held strictly responsible for all damages sustained bjr passengers travelling upon théir lines, by reason .of fault or negligence on their part; and by statute in many cases when damage results, the presumption of negligence arises. For their own protection railroads are
The testimony conflicted as to whether plaintiff’s intestate was inside the car or upon the platform when the car struck the cow, and which caused the car to leave the track. There was evidence tending to show that deceased and one other-person were upon the platform when the cow was struck, and that both persons fell between the cars and were run over and killed. There was evidence tending to show that none of the persons who remained inside the cars were seriously hurt, and the evidence tended to show there was room inside for deceased if he had chosen to remain inside. There was evidence, also, that plaintiff’s intestate knew of the regulation which prohibited persons from being on the platform while the car was in motion.
The correctness of the rulings of the trial court in giving or refusing charges must always be tested by reference to the testimony before the jury. The evidence showed that the train upon which deceased was riding, was used by the defendant to carry its own employés and their tools to and from their place of work, and was not used for the transportation of passengers. It was a rule of defendants, and known to plaintiff’s intestate, that no one should ride upon this train except defendant’s employés, without the permission' of the defendant’s superintendent, who at this time was one McCormick: . The evidence tended to show that one J. W. Watts was getting-out timbers for defendant’s company at so mucli per thousand at a place along defendant’s line, and that Watts had a number of men employed in his service, and among them was plaintiff’s intestate, and that his (Watts’) employés boarded with him at Pratt Mines. Watts and his employés had been in the habit of boarding this train every morning as it passed Pratt Mines, to go out to their work, and, as it returned in the evening, would come in on it to their place of lodging. Watts and his employés paid no fare, and none was demanded of them. The witness Watts testified, that for six months he and his employés had been in the habit of going out to his work and returning on this train, without objection from any one; and this witness without objection was permitted to tes
It is clear that defendant’s train was not a passenger train within the meailing of the law; and that plaintiff’s intestate was not a passenger entitled as a matter of legal right to ride upon the train. The evidence, favorably stated for the plaintiff, shows that defendant owed no duty to plaintiff’s intestate as a passenger; that, as a matter of convenience, Watts and his employés availed themselves'of defendant’s cars, used by defendant for its own employés only, and not for the use of passengers, to reach their work, thus saving time, expense and labor, without a profit or benefit to the defendant. It would be gross injustice, under such circumstances, to hold defendant to the same degree of care as the law affords to passengers.
The law, sustained by many authorities, and founded on common sense, imposes an obligation upon any person who invites or induces another to come upon his premises, to provide for his security, and guard him against dangers to which he may be exposed; but one who avails himself of a mere license, and enters upon the premises of another, has no right to require of the owner that he keep his premises in a safe condition; and the owner, in such cases, is not responsible except fcfr wanton or intentional injury. The few exceptions to this genera] rule have no bearing in this case. The facts of this case clearly distinguish it from those where the carrier, by invitation, induces another to enter the train, or undertakes to carry another by contract, express or implied, whether made with the person to be carried or with another for him, or with one or more for the carriage of an indefinite number of unknown persons, as where a car may be chartered by one or more, for an excursion, and similar cases, or where the law imposes a duty to carry, or this duty arises from contract; in all of which it has been held, that the railroad was required to exercise the same care and diligence for the safety of such persons, as if they were strictly passengers. — Hutchinson on, Carriers, §§ 563-4. The defendant railroad company owed no such duty to plaintiff’s intestate. He knew that the train was ’
The rule that a person, when exposed to sudden and unexpected danger, is not responsible for acting without judgment, or “wildly,” depends materially upon the facts and circumstances of the case, and as to whether he has wrongfully and voluntarily put himself in a place of danger.
The court very properly charged the jury that they “were not authorized to find from the evidence that the injury to' plaintiff’s intestate was inflicted either willfully, wantonly or recklessly.”
After the most favorable consideration of the evidence for plaintiff, we are of the opinion the court would have been justified in giving the general affirmative charge for the defendant. The error in charging that plaintiff’s intestate was a mere trespasser, was error without injury, inasmuch as the defendant was* entitled to the general affirmative charge.
The judgment must be affirmed for another reason. The bill of exceptions does not purport to set out all the evidence, or substantially all; and under such circumstances, we must presume there was evidence to support the ruling of the court in the charges given.
Affirmed.
