Metcalf v. St. Louis & San Francisco R. R.

| Ala. | Jun 18, 1908

ANDERSON, J.

The second plea was no answer to the complaint, as it does not negative the fact that the intestate was standing on the platform of the station, where defendant’s servants were accustomed to receive and discharge passengers, or to charge him with knowledjge of the projection from the passing train. The intestate was not guilty of negligence in being on the platform, unless he knew that the train or projection would extend over same while passing. He had the right to rely upon the safety of the platform as against passing trains. The trial court erred in not sustaining the demurrers to the second plea.

The plaintiff derived no injury from the overruling of the demurrer to plea 5, as it could have been proven under the general issue.. If the plaintiff’s intestate was killed while attempting to get on a rapidly passing train, then he was not killed in the manner charged in the complaint.

Charges 1 and 2, given at the request of the defendant, were in conflict with the oral charge; but we need not decide whether their influence upon the jury was overcome by the oral charge or not, if they were bad, as this case must be reversed, and the conflict need not occur upon the next trial.

There is no merit in the assignments of error relating to the ruling of the court upon the evidence, or in checking the argument of counsel, which was not supported by the facts in the case.

The judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.