Williams v. Louisville & Nashville Railroad

43 So. 576 | Ala. | 1907

TYSON, C. J.

Appellant’s counsel do not seriously insist that the trial court Avas in error in sustaining-the demurrer to the first, second, and third counts of the complaint; but they do insist that the sustaining of the demurrer to the fourth was erroneous. That count alleges that plaintiff was at one of the stations on defendant’s road for the purpose of being carried as a passenger ; that she was just recovering from a severe spell of sickness, on account of Avhich she Avas very Aveak and hardly able to Avalk; that when the passenger train of defendant reached the station “it was stopped for the purpose of taking on and putting off passengers, and that defendant then and there, through its agents and servants accepted plaintiff as a passenger and. transported her as such on said train from said station ■ to her destination, and received her fare and pay for the same, but that defendant through its agents or servants undertook and proceeded to assist plaintiff to board said train by lifting her up the steps of a passenger coach of said train, but performed said service carelessly and negligently; that she was caused to fall or be violently thrown from said steps to the ground, thereby causing her great injury,” etc. While a carrier is under no duty to accept as a passenger a person who is physically unable to take care of herself unattended by a care taker, yet if such a person, without an attendant, is accepted by the carrier as a passenger, and his disability is apparent or made known at the time of his application for carriage to the servants of the carrier, it becomes the duty of the carrier to render to such person such special care and assistance as his condition may require in order that he may be safely transported. 6 Cyc. p. 599; 5 Am. & Eng. Ency. Law, (2d Ed.)—; 2 Hutchinson on Carriers (3d Ed.) § 992. But, “whether bound to'assist a passenger or not, a carrier is always liable for negligence in so doing.”—2 Sher. & Red. on Negligence (5th Ed.) p. 929, § 510.

But it is insisted that the count fails to show that plaintiff had been accepted as a passenger prior to receiving her injuries. We do not so read it, and do not think its language is fairly susceptible to any such construction. To the contrary, the averment shows clearly and unequivocally that she was accepted as a passenger before attempting to board, the train. It is of no consequence that she had not purchased a ticket or paid her fare at that time. Whether the count sufficiently shows that the agents or servants had knowledge of plaintiff’s physical condition is not raised by the demurrer. Their knowledge of it may certainly be fairly inferred from the facts averred; so, then, it cannot be said that the count fails to slate a cause of action.

There is clearly no merit in the contention that the count is subject to that ground of the demurrer that no facts are averred which show that defendant’s servants or agents were acting within the scope of their authority or in the line of their duty.

The action of the court in sustaining the demurrer to the count under consideration was erroneous.

Reversed and remanded.

Dowdell, Anderson, and McClellan, JJ., concur.