Railway v. McGinty

SIMPSON, J. This action is for damages claimed to have been sustained by the plaintiff in the act of alighting from a car of the defendant. The first count of the complaint alleges that plaintiff was a passenger on the car of the defendant, from Birmingham to Cleveland, and that while plaintiff was alighting “at said Cleveland,” the car “started or jerked,” etc., and plaintiff was thrown, etc. There is no proof that there is any city or town by the name of Cleveland, but it is spoken of as a “station,” “a little shed on the left-hand side,” and it seems to he not far from Tate station. ■ According to the evidence, including the plaintiff’s own testimony, the accident did not occur at Cleveland, but, on the contrary, a car which was in front of plaintiff’s car stopped at Cleveland, and plaintiff’s car was stopped about two car lengths distant from Cleveland station, and merely moved forward to reach that station when the other car moved on, and it seems that the plaintiff was in the act of stepping off when it moved. The word “at” is taken in the sense of at or near, in this complaint, and this did not constitute a variance. Under the decisions of this court the first count of the complaint is not subject to the demurrer interposed; the allegation of the duty and the general allegation of negligence being sufficient. If, as alleged, the plaintiff was a passenger to Cleveland, and the car had reached that, place and stopped, it was the duty of the defendant to wait a sufficient time to allow passengers to alight, and not to start the car . while a passenger was in the act of alighting. Under the allegations of this count, if the car had stopped a - sufficient length of time to allow the passenger to alight, and those in charge of the car had no knowledge of- the [414] fact that he was alighting, these are matters of defense which might have been set up. — Postal Tel. Cable Co. v. Jones, 133 Ala. 217, 225, 226, 32 South. 500; Armstrong’s Adm’r v. Montgomery St. Ry., 123 Ala. 233, 244, 26 South. 346; Sweet v. Birmingham, etc., Co., 136 Ala. 166, 169, 33 South. 886; 2 Hutchinson on Carriers (3d Ed.) § 1118, p. 1308; Birmingham, etc., Co. v. Moore, 148 Ala. 115, 42 South. 1024. That part of the oral charge excepted to, although it did not clearly express the idea intended to be conveyed, Avas cured by other parts of the oral charge. There was no error in the refusal of the court to give charge numbered 3, requested by the defendant. The evidence shoAvs that the conductor was present, near the plaintiff, when he. lighted, and it Avas for the jury to say Avhether he sa.Av that the plaintiff Avas about to alight, and might have prevented it, or prevented the starling of the car while he Avas alighting. The judgment of the court is affirmed. Harm,sox, Dowdbíj,, and Drxkox, -TJ., concur.