41 So. 964 | Ala. | 1906
— The plaintiff received his injuries from a fall caused by stepping from one of the defendant’s passenger trains while moving. It was shown both by the averments of the complaint and his testimony that he had boarded the train for the purpose solely of assisting an old lady, who was nearly blind, at her instance and request, to take passage upon it; and before he could locate her in a seat the train began to move out of the station. According to the averments of the complaint and his testimony, he told the conductor in charge of the train, before boarding it, of the old lady’s condition and of her need of assistance to get upon the train, and to secure a seat, and Aras requested by that officer to perform that service. It is undoubtedly the laAV that “a carrier owes a duty to- persons who come upon a train accompanying passengers, with the intention of getting off before the train starts or for the purpose of meeting passengers who are about to alight. And especially is there such a duty when the passenger requires assistance which the servants of the carrier do not undertake to render. But if the servants of the carrier have no notice or knowledge of the intention of one thus coming on board to get off before the starting of the train, they owe him no additional duty as to affording him an op
Mr. Elliott in his work cited above says: ' “There is some diversity of opinion as to whether one who enters a-train for the purpose of assisting a passenger is to be regarded as a passenger, and there are cases which seem to hold that such a person is a passenger. We are unable to assent to this doctrine as broadly held by some of the cases, for it seems to us that the extraordinary duty of a carrier to a .passenger, is not, as a general rule, owing to such a person, although we have no doubt that the railroad company owes to him the duty of exercising ordinary or measurable care. There may probably be cases where a person assists a passenger on a train, as, for instance, where, the passenger is ill, feeble, too young to care, for himself or the like, where it is proper to hold that the person needing the- assistance is a passenger, but where there is no reason for rendering assistance the person giving it cannot, as we believe, be regarded as a passenger.” We think the distinction here pointed out by the learned author is well taken. The illustration given by him of the condition of the person taking passage rendering it' necessary to have an assistant to help him safely board or get off the train, brings such an assistant, rendering the requisite service, within the category with respect to the duty owing
We fully concur in the view that the duty of the conductor not to start the train never arose in this case unless he knew or ought to have known that the plaintiff’s sole purpose in going on it was to assist the lady to a seat. But we think the circumstances shown were such as to afford the reasonable inference that he did know or ought to have known that plaintiff boarded the train solely for that purpose. It is reasonable to suppose that plaintiff would not have approached him, and made known the infirmity of the old woman if he intended to take passage himself. Had he intended to do so it is more than probable he would have assisted the woman to board the train and to a seat without making known her condition and need of assistance to that servant of the defendant.—L. & N. R. R. Co. v. Crunk, supra; Galloway v. C., R. I. & P. Ry. Co., supra.
Nor can it be affirmed, as a matter of law, that plaintiff’s alighting from the train, while moving, under the circumstances shown, was an act of negligence which would defeat his recovery. Whether it was or not was a question for the jury.—Central Rail & Banking Co. v. Miles, 88 Ala. 256, 6 South. 696; North B’ham St. Ry. v. Calderwood, 89 Ala, 247, 7 South. 360, 18 Am. St. Rep. 105; Montgomery & Eufaula R. R. Co. v. Stewart, 91 Ala. 421, 424, 8 South. 708; Watkins v. Birmingham By. & Elec. Co., 120 Ala. 147, 152, 24 South. 392, 43 L. R. A. 297, and authorities there cited. There was clearly no duty on plaintiff to request the conductor to stop the train, after it started, for him to alight.—Miles’ Case, supra. He had the right to get- off, and if injured in doing so he may recover if the conductor knew or ought to have known what his purpose was in boarding
Charge 8 was calculated to mislead the jury to the conclusion that the conductor must have had express notice that plaintiff was not a passenger, or did not intend to remain on the train.
Affirmed.
