67 So. 391 | Ala. | 1914
This, suit .was brought by William Standifer, Jr., by next friend, to recover dam-' ages for the negligent failure of the defendant’s con-, ductor to stop a train on which plaintiff was.a passenger, at the point of his destination, and to; allow him there to disembark from the train. . .'
It seems that the plaintiff is a little boy, and that on the 4th or 5th day of October, 1912, he and his father and mother and another child took the defendant’s train at Parsons, Ala., for Irondale, Ala. The plaintiff’s father paid the conductor the fares to Irondale, and on the subject now under consideration testified as follows: “We first went over to Parsons and waited there some little time; I don’t know how long. When we got on the train and the conductor came around for the fare, I said, ‘How much is the fare for my wife! and two children and myself to Irondale?’ I told him I wanted to get off at Irondale, and asked him if he would stop, and he said he would. I asked him wbat the fare was for four-of us, and he said $1. I gave it to him, and he said, ‘I will stop at Irondale. We came
On the same subject a witness for the plaintiff testified as follows: “Why he told him [the father] that he was sorry [that he had carried him by the station], but he was a new man on that road, or being used to running on the fast train — I believe that it is — and he would do anything to get them back out there. He told them that he would hire a taxicab and pay for it out of his own pocket.”
The mother of the little boy, on the same subject, testified as follows: “The conductor paid for the automobile. The conductor was very nice about it — very pleasant all of the time. He was very gentlemanly all during the whole trip. He done all right, except he promised to put us off at Irondale and didn’t do it.”
The above evidence shows that the conductor, who had been accustomed to run on a fast train — a train which made but few stops, and which was not accustomed to stop at Irondale — simply forgot to stop his train at that point, and by inadvertence carried this family on into Birmingham. The' plaintiff’s evidence shows that the attention of the conductor was not called to this act of forgetfulness oh his part until
In this case there was no circumstance indicating oppression, unkindness, ill will, insult, or reckless indifference. On the contrary, all the evidence shows that (to quote the plaintiff’s mother) “he done all right, except he promised to put us off at Irondale and didn’t do it.” The evidence not only shows this, but it shows that so soon 'as the mistake was discovered this conductor did everything that the most kindly man could have done under similar circumstances. The father said: “The conductor aeted very nicely. He said he was sorry. He paid for the automobile out of his own pocket.” 1
It was eight miles from Birmingham to Irondale, and yet this conductor, whose act of forgetfulness is sought to be construed into one of wantonness or into reckless indifference, sent this family home — as the best method of repairing his act of negligence — in an automobile at his own expense. There is not only no evidence of wantonness in this record, but the evidence conclusively rebuts such idea. — Wilkinson v. Searcy, 76 Ala. 176.
A blacksmith pricks a horse by careless shoeing. The horse, by reason of his lameness, is delayed in passing through a forest, and a tree falls on him and kills him. “Such injury would not be the measure' of the blacksmith’s liability.” — Jaggard on Torts, p. 375.
In the istance first supposed, the tree was the direct cause of the death of the horse. In the instance last supposed, the loss of the leg of the horse, or the loss of his life, is traceable directly to the defective shoeing. In the first instance supposed, the defective shoeing was the remote, and the falling of the tree the direct, immediate cause of the death of the horse. .In the last case supposed, the loss of the leg or life of the horse is directly traceable, to the defective shoeing -as. its immediate, not remote, cause. When a person is already sick,' feeble, debilitated, or is lacking in physical strength, and, through the negligence of another, is caused to do some act which, as its direct result, increases such sickness, feebleness, or debility, .or which causes him to do some act beyond his physical strength, and thus produces injury, such damages, in proper cases, may be recovered.
There .are certain diseases, such as rheumatism, la grippe, etc., which common experience indicates are increased in intensity by exposure to cold; and such dam
While in this case the testimony of the physician indicates that a person in a weakened condition is less likely to resist or throw off the germ of typhoid fever than is a strong and healthy person, common observation indicates that the strong and the healthy, as well as the weak and debilitated, are all subject to this disease. Indeed, the évidence of this physician shows that, in permitting testimony as to the typhoid fever with’ which plaintiff was attacked after the act of negligence complained of, the court opened wide the door of speculation and permitted the jury to- consider testimony which, at best, could only produce doubt and uncertainty in the minds of the best trained medical men of the world.
The squib case, so frequently referred to in the books, has nothing to do with the facts of this case. In the squib case the squib did the injury. In this case a typhoid germ directly caused the fever. If, on the way to Irondale, the automobile had run over a bomb which an anarchist had left in the highway, and the bomb had exploded and injured the occupants of the automobile, the defendant would not be liable for that injury. The anarchist who left the bomb there would be liable.
We are not dealing here with a case where, through an act of negligence, a person is carried from a safe place into a dangerous place, and there suffers injury, or from a healthy locality into a plague stricken place, and there takes the plague. We are simply dealing with a case in which we know — in so far as human science. can tell us- — that a person has had a case of typhoid' fever caused by the specific germ of typhoid fever. How
The trial court erred in allowing any testimony as to the plaintiff’s attack of typhoid fever.- — L. & N. R. R. Co. v. Quick, 125 Ala. 553, 28 South. 14; Montgomery & E. Railway Co. v. Mallette, 92 Ala. 209, 9 South. 363; E. T. V. & G. R. R. Co. v. Lockhart, 79 Ala. 315.
3. There are some other-questions presented by this record, but in view of what we have above said, we do not think it necessary to discuss them.
For the reason above set out, the judgment of the trial court is reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
