Western Railroad v. Young

Trippe, Judge. 1. The case of The Georgia Railroad and Banking Company vs. McCurdy, 45 Georgia, 288, we think, determines the first point made in the case. If the conductor of a railroad train agree to put a passenger off at a particular place, whether it be a regular station or stopping place or not, it would be the duty of the conductor so to stop the cars at that place that the passenger could get off in safety. It cannot affect the rule that the passenger had a ticket only to the station last passed, before reaching the place at which he was to be put off. The conductor had the power to demand and receive any additional fare accruing for carrying the passenger to a point beyond the station to which his ticket entitled him to be carried. . And as was said in the case above referred to, “if he were to take fare for four miles he would be bound to put his passenger off there:” See 14 Howard’s Reports, 468; 16 Ibid., 260, 469; 3 Allen, 18. [493] 2. The chief contest in the argument was whether the court was right in using the word “could” in the charge instead of the wrord “might,” as he was requested. The charge, in substance, "was that the cars should have been stopped or “slacked up,” so that the plaintiff “could get off in safety.” The court was requested to charge that if the train did slack up so that plaintiff “ might have gotten off safely, then, although plaintiff was injured in getting off, defendant is not liable.” The court used the proper term. “Might” rather implies was possible, within the limits, of ehanee. “ Could ” more strongly signifies was able, had the power. Certainly a conductor has not discharged his duty who so checks his speed that it is possible for a passenger to get off safely. But whether I am right or wrong in this criticism or explanation of these two potential mood prefixes which are often indiscriminately used, the difference between the two is hardly potential enough to constitute a legal error sufficient to set aside a verdict, reverse a judgment and grant a new trial. 3. The second request to charge made by defendant below is also obnoxious to the criticism already made on the word “ might” in this connection. But it goes farther. It is “that if the train slacked up so that plaintiff might have gotten off safely, it was for him to determine whether he would get off or not, and if he did get off, and in so doing was injured, he is not entitled to recover.” The conductor was standing close by, he saw plaintiff and the friend he was traveling with standing on the steps of the car ready to get off. That friend did get off. The cars were still in motion and did not stop. The conductor neither gave warning not to get off, or notice that the cars would stop or still further slack up. In fact he knew the cars would not stop. The passenger took the only chance he had. • He tried to follow his friend, the conductor standing by. All this makes a case as strong as that of The Georgia Railroad vs. McCurdy, supra, and we do not see anything that calls for a reversal of the judgment of the court below. Judgment affirmed.