132 Ala. 412 | Ala. | 1902
— Charge 1 given for plaintiff may-have a tendency to- mislead the jury which should have been corrected by a request for an explanatory instruction, but it is abstractly sound. If the cause of plaintiff’s injuries was the failure of defendant to observe due care and exercise due skill in discharging toward him its duties as a common carrier, the company was of course liable in this action. And that is the meaning of this charge. Properly interpreted by its terms it predicates liability upon a result produced solely by the fault of the defendant, and excludes the idea that defendant would be liable for a result flowing from its own negligence in connection with another cause — the contributory negligence of the plaintiff.
The second charge given for plaintiff is not open to the criticisms made in the brief for appellant. It has been often decided that the leaving of a car while in motion is not necessarily and as matter of law negligence on the part of a passenger. Nor can it be said to be negligence per sc for a passenger when he is informed by the carrier that the train is about to stop at his destination, and especially when he has been directed or invited by the carrier to leave the car, to take a position on the platform or the steps of the car preparatory to alighting. And having taken such position under the circumstances shown in this case, it was for the jury to find and not for the court to declare whether he was guilty of negligence in remaining there in a position to comply with the carrier’s direction or invitation for the length of time the plaintiff maintained that position on the occasion of his injury.—Birmingham R'y & Elec. Co. v. James, 121 Ala. 120; Watkins v. Birmingham R'y & Elec. Co., 120 Ala. 147. Upon these considerations we approve also the action of the trial court in refusing charge 11 requested by defendant.
The first count of the amended complaint seeks a -recovery for the negligence of defendant’s servants in causing plaintiff “to be engaged in or about alighting from said train at a place and under circumstances when and where it was unsafe for plaintiff to be so- engaged in or about alighting.” And there was evidence tending
Charge 14 proceeds upon the untenable theory that if plaintiff, having gone onto the platform or steps in reasonable obedience to the admonition of defendant’s servants, Ariz.: “All out for Huntsville,” having just pre-Adously announced to the passengers the near approach to that city, remained there while the train ran a distance of about tAvo hundred yards, he was guilty of negligence as a matter of law. It Avas properly refused.
We find no error in the record, and the judgment will be
Affirmed.