133 Ala. 508 | Ala. | 1901
The appellee sued the appellant, the Montgomery Street Bailway, to recover damages for injuries received by him as a passenger on one of the appellant’s cars, in alighting from the car, caused by appellant’s negligence. The plaintiff recovered a judgment in the court below, and from this judgment the present appeal is prosecuted.
There are numerous assignments of error, in all, fifty-five. Some of these assignments are, however, not insisted on in argument, and such as are not insisted on, wall not he considered. The first seven relate to the rulings of the court on motions of the defendant; the appellant here, to strike certain parts of the complaint as being immaterial averments, and merely surplusage. After the action by the court overruling the motions to strike, the plaintiff amended the first and second counts of the complaint by striking out the vmrds, “light, means, and facilities,” to which the motions to strike wrere in part directed. With the complaint as thus amended no injury resulted to the defendant in overruling the motions to strike. If it be conceded that there 'was error, still we are unable to see that the defendant wras in any way prejudiced, and unless it affirmatively appears that the refusal of the court to strike immaterial and irrelevant averments results prejudicially, such refusal does not constitute reversible error. Columbus & Western R'y Co. v. Bridges, 86 Ala. 448.
The 8th, 9th and 10th assignments of error relate to the overruling of the defendant’s demurrer to the complaint, and the questions raised by these assignments that are insisted on in argument, are also raised by charges requested by the defendant, and which wmre refused by the court. These embrace the vital points in the case, and as they were argued together by counsel for appellant, will in like manner be considered together here.
The gist of the action is in the alleged negligence of the defendant in stopping its car, upon which plaintiff
The 2d, 3d, 4th and 5th pleas of the defendant, to which demurrers were sustained, sought to set up contributory negligence on the part of the plaintiff. The 2d plea avers, “that when the car stopped, the lights from the car shone for ten or twelve feet on either side of the track, and that plaintiff could have seen the alleged lumber and debris before lie stepped thereon, by the exercise of ordinary and reasonable care on his part.” There is no averment in this plea that the plaintiff failed to exercise ordinary and reasonable care, or that he did see the lumber. In this respect the plea was bad. The 3d plea assumes that it was the duty of the plaintiff to inquire of the defendant or its agent as to whether the place of stopping was a reasonably safe place, while on the contrary he had a right to assume on the conduct of the defendant, as alleged in the complaint, that
We do not understand it to be a contention on the part of the appellee, as supposed by appellant’s counsel, that any duty rested on the appellant to provide along the line of its railway, depots and stations for the convenience or safety of its passengers, as in case of steam railways, hut only to provide for reasonably safe places for its passengers to get on and off its cars. It cannot be doubted that street railway companies, as common carriers of passengers for hire, are under the duty of exercising the highest degree of diligen.ce and care in conserving the safety of their passengers, and are i-esponsible for the slightest neglect. — Smith v. St. Paul City R. Co., 16 Am. & Eng. R. R. Cases, 310; 7 Rap. & Mack’s Dig. R’y Law, p. 458, § 325. This duty arises when the relation of carrier and passenger begins, and continues until that relation is ended. These propositions of law are not disputed, but it is contended in the present case, that at the time of the injury complained of, the plaintiff was no longer a passenger on the defendant’s car, after alighting from the same, and that the defendant was relieved of all responsibility after the plaintiff had alighted from its car onto the ground at the place where it stopped for that purpose. And this involves the question of the duty of the carrier to provide a reasonably safe place for the landing of its passengers. The same duty of exercising the highest degree of diligence and care in the carriage or transportation of passengers, in law and reason extends to .and includes the safe landing of the passenger at the termination of his journey or ride, and this duty is not performed when the carrier lands its passenger at a time and place of such unknown environment to him, that in his first effort to depart after alighting onto the ground, lie is tripped and thrown by an unseen pile-
This case in principle is similar to the case of Richmond City Railway Co. v. Scott, 86 Va. 902, and the doctrine there laid down, and the authorities cited in support of it, are applicable here. We quote from authorities cited in that case. In Wharton on Negligence, section 649, it is said: “When danger approaches it is the duty of the officers of the road to notify passengers, so that they can take steps to avoid it; and failure to give such notice is negligence. So, also, if there is a dangerous place at the landing, it is the duty of the conductor to warn those about stepping out.” “And * * * he must give notice to all if any danger in alighting is probable.”
In Cartwright v. Chicago, etc., R’y Co., 52 Mich. 606, Cooley, C. J., says: “If a car in which there were
The record does not show that the item of $159 of hospital fees paid by the plaintiff, while under treatment for his injuries, included anything other than that of the expense of a nurse and a ward in the hospital The court excluded the item of board and traveling expenses paid out by the plaintiff. If the attendance of a nurse was necessary while the plaintiff was under treatment for his injuries received on account of the negligence of the defendant, we cannot see why this is not- as essentially an element of recoverable damage, as the professional fees of the attending physician. So, too, the necessary expense of a private ward in the hospital while undergoing treatment would constitute a proper element of recoverable damage. There was no error in the action of the court in refusing to exclude the item of $159 from the consideration of the jury in estimating plaintiff’s damages.
A majority of the court are of the opinion that there urns error in overruling the motion to suppress the deposition of J. H. Drake. They hold that since the commission was joint and not several and nothing was done by defendant to waive the absence of the commissioner Samford, the execution by Watkins was invalid'; and in this they follow the rule, mentioned in Dogue v. Pearce, 13 Ala. 128, and sustained by other authority, for the maintenance of which they think there are substantial
On the motion for a new trial, the court very properly excluded all the evidence by the jurors who tried the case, as to the manner of their arriving at the verdict. — Eufaula v. Speight, 121 Ala. 613. This evidence
For the error pointed out the judgment will be reiver sed and the cause remanded.