Widener v. Alabama Great Southern R. R.

69 So. 558 | Ala. | 1915

SAYRE, J. —

Count 4 in its original shape described the defendant as engaged in the business of a common-carrier of passengers. But the count did not aver that plaintiff was a passenger at the time of the wrong and injury of which he complained. That averment seems to have been deliberately avoided. The allegation was simply that plaintiff was “rightfully” in defendant’s station, and the gist of the complaint was that he was wrongfully ejected. By sustaining defendant’s demurrer the court- drove plaintiff to an amendment alleging that he had gone to defendant’s station for the purpose of becoming a passenger on defendant’s railroad — in effect, that plaintiff was a passenger. The complaint was not of simple negligence, as in Louisville & Nashville v. Glasgow, 179. Ala. 251, 60 South. 103, cited by appellee, but it was of a wrong of such nature, though not alleged to have been accomplished by force, that necessarily it resulted from intention-on the part of defendant’s agent. It was, in substance, that defendant’s agent with ugly words ordered plaintiff from the premises. The case cited is therefore not in point. But it does not follow that the ruling was erroneous, for, if plaintiff was not a passenger, then as a matter of pleading on the facts alleged in the original count he must be considered as a bare licensee, whose license defendant had a right to revoke by ordering him away, and in such circumstances the allegation of ugly words added nothing to the damages claimed on account of, to-wit, bodily injuries; nor did the use of such words stand in the relation of proximate cause to the damages alleged.

(1) There was no reversible error in the ruling as to count 5. The original count was good as against the demurrer. After the amendment, which the ruling on demurrer required plaintiff to make, but which in our judgment added nothing to its essential legal effect, nor increased-plaintiff’s burden of circumstantial-proof, the count was held sufficient and went to the jury. No harm was done.

For like reason there was no reversible error in the ruling on the seventh count. The. amendment, which was allowed to meet the demurrer, added- nothing to the legal effect of the count, or the burden of proof assumed by plaintiff.

(2) Plea 4 stated a good defense. The ruling on this plea involved the same considerations that induced, the trial court to give the affirmative charge for defendant, and the assignments of error upon the two rulings vvill be discussed in connection. Plaintiff declared as a passenger in waiting. In count 6 he charged defendant with neglect of duty to him as such a passenger, in that' the platform of the station house was not properly lighted. In the other counts the gist of the action stated is that he was wrongfully ejected from the waiting room. Plaintiff’s right to recover on any count depended upon his status upon the premises as a passenger in waiting and defendant’s breach of duty to him as such.

Plaintiff and a companion, strangers in that section of the state, had gone on foot to defendant’s station at Coaling between 1 and 2 o’clock in the morning. Going into the waiting room, and inquiring for a train that would take them to Tuscaloosa, and offering to buy a ticket, they were told that there would be no train for them until after 7 o’clock next morning, at which time.they could buy tickets. The station at the time was in charge of a telegraph operator, and the office was not open for the sale of tickets; the agent, who alone could sell tickets, having locked them up and gone away for the night. Plaintiff’s testimony was that, after some conversation concerning the situation they were in, the agent in charge at the time told him and his companion that they might remain in the waiting room until the train was due, but that within an hour, addressing them as “you d-d people,” and telling them that it was against the rules of the company for them to stay there, in a rough and angry manner ordered them to get out, and that thereupon, going out into the dark, he walked off the unlighted platform, fell upon the track, and was injured. The agent told another story as to what took place, but where there is any conflict in the testimony the case has been stated according to the testimony of plaintiff.

(3-6) One who within a reasonable time goes to a railroad station with the bona fide intention of taking a train becomes thereby entitled to protection as a passenger. — Louisville & Nashville v. Glasgow, supra, and authorities cited. Whether or not a person is a. passenger is generally a question for the jury, and always so when different inferences may be drawn from the testimony. — North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 550, 13 South. 18. As shedding light on the question of reasonable time in the present case, defendant was properly allowed to prove an order of the Railroad Commission prescribing,.among other things, that station rooms on each railroad operating within this state shall be open at least an hour before the scheduled arrival of passenger trains, and shall remain open until the departure of such trains. This order established, prima facie, at ¡least, one hour as, the reasonable time during which station rooms shall be open for the accommodation of persons intending to take passage, and by necessary effect the reasonable time within which persons intending to become passengers may expect to find waiting rooms open and ready for their reception. Special circumstances may enlarge the time; but beyond a reasonable time, on whatever facts determined, the carrier is not required to furnish lodging to prospective passengers. If, however, a railroad company through its agents opens its station far in advance of a reasonable time, and merely permits a prospective passenger to rest therein, thereafterward and until he is accepted as a passenger, or until he becomes such by necessary intendment of law, he falls within the protection only which the law extends to licensees without express invitation. The duty to a person in that situation is to refrain from activity causing him injury and to warn him of hidden dangers known to the owner of the premises.- — 2 Jaggard on Torts, 892.

(7) We thing it is a clear proposition of law that there was nothing peculiar in plaintiff’s situation so far as concerned defendant’s right and duty in the premises —that is, there was nothing requiring as a legal -duty special favor to plaintiff; that he was entitled only to such provision as the law required for the general public at Coaling; that he had no right to expect or demand the use of defendant’s waiting room for five or six hours in advance of the departure of the first train on which he could take passage; and that, though he had been allowed to remain in the room, that indulgence was a mere license, which might be withdrawn at any time, provided that was not trenching upon the reasonable time which must be allowed persons intended to become passengers.

(8) For an owner of premises, revoking a license, which he has a right to do, to address the licensees angrily as “d--d people,” is no assault; it may be considered as a grievous breach of good manners, but is not an injury for which the law undertakes to furnish redress, at least not in an action counting solely on bodily injuries. Plaintiff stepped off the platform on the outside and was hurt; but that is not complained of as the intentional result of his alleged wrongful ejection from the waiting room, of Avhich most of the counts complain, but as the consequential result of that alleged wrong, for which consequence there can be no recovery, unless the ejection itself was wrongful in and of itself. Nor does the evidence afford a reasonable inference that defeudant’s agent in fact intended or anticipated that plaintiff would step from the platform without seeing where he was going to land; nor did the fact that plaintiff was so injured have any proximate causal connection with the agent’s command to leave the waiting room, in whatever impolite language that command was delivered.

(9) In the sixth count plaintiff’s fall and injury are attributed to defendant’s negligence in failing to have the platform properly lighted. But to plaintiff as a licensee without express invitation defendant owed no duty in that regard. He took his permission with its concomitant conditions, it may be perils, barring only dangers that were hidden from ordinary observation.— Jaggard, supra.

In the foregoing view of the case, other assignments of error are of no consequence.

Affirmed.

Anderson, C. J., and McClellan and Gardner, JJ., concur.