Southern Railway Co. v. Lollar

HARALSON, J. The evidence for the plaintiff shows, that he hoarded the train at Oalcman, without a ticket, it being late at night, and paid the conductor his fare to Lockhart, station; that at the time, he paid the conductor his fare, the latter did not say anything about not stopping at. Lockhart, hut he did, afterwards, tell [378] the plaintiff that the train did not stop'at that station,, and then plaintiff told him he -would get off at -Corona,, shown to be about a mile this side, or short of Lockhart,, to which he made no objection; that as they approached Corona, that station was called out three times, and the-last time, — which call was made by the conductor, — the train came to a dead stop; that he walked out to the front end of the car to get off, ahd the conductor was-, standing there, and he nor the flagman, who was standing in the car, said anything about the train not having, reached Corona; that about the time he was alighting,, the train started with a jerk, and threw him off the train- and injured him, and that this was about 200 yards; from the station at Corona. The evidence on the part of defendant tends to show that the plaintiff paid, his fare, not to Lockhart, but to Corona;' that the conductor told him at the time, the train did not stop at Lockhart, hut would make a stop at -Corona, and he would have to get off there; that he did not see him when he got off, and did not know anything about how he got off; that he had no conversation with him, or with plaintiff’s brother, who was with him, except the one had just after leaving Oakman, when he and his brother paid their fare to Corona; that the train did not stop or halt 200 or 300 yards or at any point before reaching the depot at Corona, but did stop at the depot, the station house being lighted inside and out; that it was not known that plaintiff and his brother had gotten off the train at the time they did, and that fact was not ascertained until after the train-stopped at the depot at Corona. The counts in the. complaint on which the case was tried, aver that the plaintiff was a passenger- on the train from Oakman to Corona, to which place he had paid the regular fare. The defense Avas, that plaintiff Avas guilty of negligence p-roximately contributoi’y to the injury he received, in jumping or attempting to alight from the train while it was in motion. The defendant requested the general charge in its faAror, and the same charge was requested on each of [379] tlie counts in tlie complaint, numbered 1, 2 aiid 3, which were refused. The contention of the defendant, proceeds on the ground of a variance in the allegations of' the complaint and the proof, the one averring that plaintiff ivas a passenger on the train and paid liis fare from Oakman to Corona, while the proof on the part of plaintiff shows that he was a passenger and paid his fare to Lockhart. If this may be called a variance, it was immaterial. The proof shows without conflict, that he paid full fare to Corona, that for the plaintiff tending to show, that he paid the fare beyond that station to.Lockhart, which was a few cents more than to Corona. But the proof for plaintiff does tend to show, that after; he paid his fare to Lockhart, and he was told by the conductor that the train did not stop- at that place, he proposed to get off at Corona, to which the conductor assented, which it 'was competent for him to do. If this was true, he became and was, as alleged in the complaint, a passenger from Oalcman to Corona, having paid full fare to that point. Furthermore, it might be properly construed as an invitation by the conductor .for him to stop at Corona. Tlie evidence for the defendant tends to show that he was a passenger from the starting point to Corona and paid his fare to that point, as alleged in the complaint. There being conflict in the evidence as to whether tlie train stopped where plaintiff got off, short of Corona, defendant’s charges were properly refused. Under the averments of the complaint, and the proof on the part of plaintiff, if believed by the jury, he was entitled to a verdict.—Smith v. Ga. Pac. R. Co., 88 Ala. 538; R. & D. R. R. Co. v. Smith, 92 Ala. 237; E. T., V. & Ga. R. R. Co. v. Holmes, 97 Ala. 332, 336; B. R. & E. Co. v. James, 121 Ala. 120; Watkins v. B. R. & E. Co., 120 Ala. 147. Upon the motion for a new trial, we have carefully examined the evidence, and its preponderance is so greatly in favor of defendant, in our judgment the motion should have been granted. The ruling of the court denying the motion was clearly erroneous, and the cause [380] will be remanded.—Birmingham E. R. Co. v. Clay, 108 Ala. 233; Teague v. Bass, 131 Ala. 422; 31 So. Rep. 4; B. R. L. & P. Co. v. Owens, ante, p. 154. Reversed and remanded.