Selma Street & Suburban Railway Co. v. Owen

132 Ala. 420 | Ala. | 1901

McCLELLAN, C. J.

— The complaint is not subject to the objections taken by the demurrer filed June 6th, 1900. The plaintiff was under no duty before jumping from a street car about to be run over by a locomotive to inform the driver that she wished to alight. And the complaint makes no claim.on account of the driver having caused the mule to quicken its pace, the averment in that regard being descriptive' of the occurrence; and it is immaterial whether the driver when he caused the mule to quicken its pace knew that plaintiff was about to jump from the moving car.

The first count of the complaint presents a case of negligence on the part of the driver in going upon the track of the Western Railway in violation of a city ordinance which required him to bring his car to a “complete stop before going on to or passing over” the railroad crossing. The second count makes a case of negligence against the driver for going onto the railroad crossing without stopping, and looking and listening for engines or trains that might be approaching on the railway as upon general principles of law it was his duty to do. And the third count ayers the incómpetency of the driver and charges negligence against defendant in employing him. In each count it is averred that as the street car was driven onto the railway, an engine came running forward on that track at a high and rapid rate of speed and ivas about to run into the car upon which plaintiff was seated, that the driver became terrified and frightened and exclaimed to the plaintiff: “We are going to be killed; the train is on ns;” that thereupon the plaintiff, startled and frightened by hearing the frantic cries of the driver, jumped from her seat, and seeing the engine coining at a high rate of speed and that it was about to collide with the car and being thereby still more frightened, she attempted to jump off, and received the injuries of which she complains in jumping off or in being thrown off by a quickened movement of the mule while she was endeavoring to get off: It is not averred that the engine collided with the car; and in point of fact it did not, but was stopped before it reached the street railway track. The complaint does not therefore present a case- of actual necessity for the course adopted by the plaintiff and in the pursuit of which she was injured. Its averments that the engine was coming toward the car at a high and rapid rate of speed and ivas about to collide Avith or run into the car are to be taken to mean that such collision was imminent, that the engine AAras near to colliding with the car, that it appeared to be on the point of collision.—1 Cyclopedia of Law & Pro., p. 196; Ala. Gt. So. R. R. Co. v. Arnold, 84 Ala. 159, 168. By said averments and this construction or interpretation of them a case is made of apparent necessity for Mrs. Owen to jump from the moving car. A reasonably apparent necessity for a passenger to leave a moving car, produced by the negligence of the carrier stands upon the same footing as a real necessity so produced, and the rights and' liabilities of the parties are to be adjudged accordingly. As said by Chief Justice Black, in Pennsylvania Railroad Co. v. Aspell (23 Pa. St. 147, s. c. 62 Am. Dec. 323): “If, therefore, a-person should'leap from the car undea*. the influence of a well-grounded fear that a fatal collision is about to take place, his claim against the company for the injury he may suffer avíII be as good as if the same mischief had been done by the apprehended collision itself.” This doctrine is fully recognized in this State, Central of Georgia Ry. Co. v. Forshee, 125 Ala. 199. 214-16; 1 Shear. & Red. on Neg. § 64; 7 Am. & Eng. Ency. Law, pp. 399, 400. The complaint, we therefore conclude, presents a case of necessity for the act in the doing of which Mrs. 0\ten received the injuries counted upon. This necessity was a link in the unbroken chain of causation, beginning with the driver’s negligence and culminating in the injury. The negligence caused the necessity for plaintiff to leave the can; the leap or attempted leap, or jump from the car caused the injury. There was no .intervening, independent, superseding cause for the result complained of. In legal effect it is as if the links in the chain were discarded, as if the plaintiff had remained on the car and received her hurts from actual collision between the engine and the cap. The negligence in contemplation of law operated as directly to the infliction of the injury in the case alleged as in the case assumed: In both the injury was the proximate result of the negligence. Upon the foregoing considerations we rest our conclusion that the city court properly overruled defendant’s second demurrer to the complaint.

It was manifestly no defense to such a complaint that the plaintiff was in no1 actual peril when she jumped. from the car, and was therefore guilty of contributory negligence in leaving the moving car. Pleas 2 and 3, and plea 5 before its amendment were therefore bad, and the court committed no. error in sustaining demurrers to them.

The court properly received in evidence the ordinance, of the City Council of Selma.—Barnes v. Common Council of Alexander City, 89 Ala. 602, and authorities there cited. The book offered was a record -copy of the ordinance and of the signatures which had been appended by the mayor and clerk to the original, and of course the fact that these names on the record were not in the handwriting of those officers in nowise impugned the integrity of the record.

We do not find that the proposition stated in charge 4, which was refused to the defendant, is substantially embraced in any of the charges given at defendant’s request. It is a sound exposition of law pertinent to the case. Of course plaintiff’s conduct in respect of being prudent or negligent is to be judged of by reference to all the circumstances surrounding her at the time, and these circumstances we conceive to he fairly submitted to the jury in this instruction. The charge should have been given.

Leaving out of view the 10th ground of the motion for a new trial — the refusal of the court to give charge 4 — ■ we would not disturb the court’s denial of that motion.

Reversed and remanded.