Southern Railway Co. v. Roebuck

McCLELLAN, C. J. — 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 [419] to support this count of the complaint. Now, it may have been that the element of danger in the situation into which the defendant’s servants induced plaintiff to go was the stopping or checking of the train, while plaintiff was so engaged in and about alighting, by the usual and customary application of the air brakes at that place, that plaintiff Avas, therefore, in a sense injured by such application of the brakes and consequent stopping or checking of the train; but, though there was no negligence on the part of the trainmen in this connection, and no recovery could be had for such stopping or checking the train, there yet ivas negligence in causing plaintiff to subject himself to the danger to one on the platform or steps incidait to such application of the brakes and consequent stopping or checking of the train; and the stopping or checking Avas the cause of the injury only in the sense that it constituted the danger to AAdiich defendant carelessly exposed the plaintiff. Under the first count, therefore, it Avas open to the jury to find for plaintiff on account of the negligence of defendant’s servants in causing him to be Avhere the sudden stopping or checking of the train would throw him, or cause him to fall off the train, and this though such stopping or checking Avas not negligent. Charge 12 requested for defendant Avould, to say the least, have tended to mislead the jury to find for defendant upon the mere absence of negligence from the act of applying the brakes, though the fact that it was usual and customary to apply the brakes in that Avay at that time and place served to prcwe and accentuate the negligence averred in this count as constituting to a greater or less extent the dangerous character of the place defendant had caused plaintiff to be in. The charge was, thereforc-properly refused. 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. [420] Whether a man of ordinary prudence would have so remained under all the circumstances was clearly a question for the jury. We find no error in the record, and the judgment will be Affirmed.