Louisville & Nashville R. R. v. Myers

THOMAS, J. (1, 2) Action by appellee, as plaintiff below, against appellant, as a common carrier, for putting plaintiff (a woman) off the train at the wrong station. The .complaint alleged in effect, and the evidence for plaintiff tended to show, that plaintiff purchased a ticket and boarded defendant’s train at Birmingham for Roebuck, Ala.; that her ticket was taken by the conductor, whom plaintiff told at the time that she wanted to get off at Roebuck, the point named in her ticket; that when the train reached Coalmont, which was the last station before reaching Roebuck, and about a mile and a half therefrom, the name of the station (Coalmont) was not called, or, if called, [311] called too low to be ordinarily heard, but that the porter, when the train stopped, came back to the car in which plaintiff was sitting, and, taking up her baggage, told her that this was the station at which she was to get off, and assisted her off; that plaintiff, thinking the station was Roebuck (her destination), willingly -got off, and did not discover (it being dark) that the station was Coalmont until the train was gone. The court, in its oral charge, among other things, after instructing the jury to the effect that it was the plaintiff’s duty to use ordinary care in ascertaining when she reached her station, and that if the station at which she alighted (Coalmont); was called in a reasonably audible manner, so that a person of ordinary hearing could have heard the call of that station, plaintiff should have heard it, and should not have gotten off there, added the following, to which defendant reserved an exception, to-wit: “But, on the other hand, if the station was not called, and if all the other averments of this complaint are true as alleged, and you are reasonably satisfied from the evidence that they are, then the plaintiff would be entitled to recover in this case.” The criticism in appellant’s brief of this portion of the charge is predicated upon the contention that it is not the duty of a common carrier of passengers to notify passengers of the arrival of trains at stations other than the station at which the passenger is to alight. This is true as a general rule (Hutchinson on Carriers [3d Ed.] § 1121) ; but circumstances alter cases, and if, as plaintiff testified, the defendant’s - porter came back under the circumstances we have before detailed and told plaintiff that this was her station, then she had a right, in .the absence of an announcement that the station was Coalmont, to assume that the station was Roebuck, the destination named in her ticket that had been previously taken up, and the place at which she had previously told the conductor she wished to alight. (3) The court also charged the jury orally as follows: “It is the duty of common carriers to carry passengers to their destination,” etc. But upon exception being taken by the defendant to this portion of the charge, the court withdrew it by further charging the jury as follows, to which exception was also reserved, to-wit: “In my charge I stated that it was the duty of the common carrier of passengers to carry passengers to their destination. Now, I will change that, and say it is the duty of a common [312] carrier of passengers to use the highest degree of care in carrying passengers to their destination.” ' The objection urged against the charge as changed or corrected is that it exacts a higher degree of care than the law requires of the defendant as a common carrier, and was not only misleading, but positively erroneous. We have had this identical question under consideration before, and reached the conclusion that the words “highest degree of care,” as used by the court, in the connection as used, were at most merely misleading and that if defendant feared that the jury might construe them as meaning the highest degree of care “known to human skill and foresight,” instead of, as they would reasonably be- expected to do, as meaning the highest degree of care “known to careful, skillful, and diligent persons engaged in like business, consistent with the practical operation of the business,” then defendant should have asked an explanatory charge.—Birmingham, Ry., L. & P. Co. v. Cockrell, 10 Ala. App. 578, 65 South. 704. See, also, Birmingham Ry., L. & P. Co. v. Barrett, 179 Ala. 274, 60 South. 262; Birmingham Ry., L. & P. Co. v. Barrett, 4 Ala. App. 347, 58 South. 760; A. G. S. R. R. Co. v. Hill, 93 Ala. 514, 9 South. 722, 30 Am. St. Rep. 65; C. & E. R. R. Co. v. Mallette, 92 Ala. 209, 9 South. 363; G. & A. U. Ry. Co. v. Causler, 97 Ala. 235, 12 South. 439. This disposes of the only errors assigned. Affirmed.