McLaren v. Alabama Midland Railway Co.

COLEMAN, J. The action was to recover damages for personal injuries. There are three assignments of error, two of which relate to the ruling of the court upon the admission and exclusion of testimony, and one, to the charge of the court, which directed the jury to find the issue for the defendant. The facts show a clear case of contributory negligence on the part of the plaintiff, and the result would be the same, with the evidence' excluded to the introduction of which an objection was reserved, or with the evidence ad [510] mittecl, which was excluded against the objection of the plaintiff. The negligence complained of was the construction of a platform so near the road track, that plaintiff while upon the steps attempting to board the train as a passenger was brought violently against the edge of the platform and injured. The complaint also avers that the train did not remain at the depot a sufficient length of time to enable plaintiff to get aboard the train with safety. The evidence is without conflict, that the train gave all parties ample time to get aboard, that after plaintiff had completed the delivery of his freight for shipment he stood talking with the witness Campbell within twenty steps of the train, on his private business for two minutes, a longer time than was necessary for him to have safely got on the train, that the conductor gave the signal “all aboard” before the train was moved, and he had ample time then to have taken passage. True plaintiff says he is hard of hearing and did not hear the conductor, but a number of disinterested witnesses testified they heard it, including plaintiff’s own witness. The witness Campbell to whom plaintiff was talking at the time heard the conductor call out “all aboard.” The space between the platform and the car was nine and three quarter inches. The injury occurred in the open daylight. Plaintiff testified that he “had lived at the station for five years, knew of the location and construction of the platform, of the dangerous proximity of said platform to the road crossing, its nearness to trains when on the track, standing or moving, but did not have the matter in his mind, at that time, as it toas occupied, with other things.” We have italicized a part of plaintiff’s evidence as it brings his case squarely within the rule declared in Hall v. L. & N. R. R. Co., 87 Ala. 719-720. The evidence shows conclusively and plaintiff admits it in his own testimony, that at the time he attempted to board the train it was moving forward at the rate' of “two or three miles an hour or faster,” while others fix the speed at five or six miles per hour. The evidence shows conclusively that rather than enter the second car, which was convenient, or walk a few steps to where the passenger car was standing, plaintiff voluntarily preferred to wait until the car moved up to where he was standing, feeling confident that he could step safely on, while it was moving forward. It seems that he had pursued this course frequently at other times against the warning and protest of the conductor. We have no reason to doubt the truth of the statement of the witness who says that immediately after [511] plaintiff was injured, lie said “I thought I was young and supple enough to hoard a moving train, but find I am mistaken, I find I am growing old.” The truth of this evidence is not disputed. The danger of the attempt was obvious. The risk was assumed, voluntarily, without the knowledge of the defendant, when there was no necessity for it, but purely as a matter of preference.—R. R. Co. v. Miles, 88 Ala. 256; Montgomery & Eufaula R. R. v. Stewart, 91 Ala. 422; Ricketts v. Bir. S. R. R. Co., 85 Ala. 600. Affirmed.