Central of Georgia Railway Co. v. Carleton

SIMPSON, J. This is an action by the appellee against the appellant for damages on account of the death of plaintiff’s intestate while a passenger1 on the railway of defendant. Count 11 is in tort, for the breach of duty in ordering .and compelling plaintiff’s intestate to go upon the platform, from which, as a proximate consequence, he fell. It is not subject to the causes of demurrer assigned. It shows the relation of passenger and carrier, and that the injury resulted as the proximate consequence of negligence of the employe of defendant, in charge of the train.—B. R. L. & P. Co. v. Adams, 146 Ala. 267, 40 South. 385, 119 Am. St. Rep. 27. Counts 14, 15, 16, and 17, also, were sufficient, and the demurrers to these counts were properly overruled. Armstrong, Adm’r, v. Montgomery Street Railway, 123 Ala. 233, 244, 26 South. 349; B. R. L. & P. Co. v. Adams, supra. The appellant insists that the court sustained a demurrer to plea 2, when none had been interposed. The demurrer, as set out in the record, was not simply to the plea “in so far” as it applies to certain counts, but was to the entire plea; one of the grounds of demurrer being that it undertook to set up contributory negligence and [69] was filed to each count of the complaint, when some of them charged willful, wanton, or intentional misconduct. It is manifest that the only judgment which could be rendered on this demurrer would'be either to sustain it or to overrule it. If sustained, the plea would be eliminated from the record, unless it was amended so as to omit the defective portion. The judgment entry states first that the demurrer to said plea is sustained in so far as it applies to certain counts of the complaint, and this is followed by the fmother statement that, a demurrer being interposed to said plea, the same was sustained, which is the proper judgment. As the first statement in the judgment entry, that, a demurrer was filed to the pleas, “ in so far as they apply to” certain counts, and sustained, indicates that a plea was filed in that language, and the said demurrer not being set out, the judgment of the court must be held to be correct. If there was such a plea, the judgment is correct; if there was not, the judgment in that particular is harmless. There was no error in sustaining the demurrer to the ninth plea. Said plea does not deny, or confess and avoid, the allegations of the complaint. It does not answer the allegations, contained in each count, which attempted to set out the facts showing that the plaintiff was not only ordered out of the car, but was “compelled” to go out on the .platform, or was “driven out.” Moreover, even though the plaintiff may have been in the negro coach, this would not necessarily justify the conductor in ordering or compelling him to go into another coach while the train was running at a dangerous rate of speed.—Carleton v. Central of Georgia Railway, 155 Ala. 326, 46 South. 495. There was no error in sustaining the demurrer to the tenth plea. In addition to the fact that said plea is to [70] the “complaint as a whole, and to each count separately,” the fact that a party had voluntarily incapacitated himself from ability to exercise ordinary care for his own protection, by intoxication, would not furnish any excuse for the officer in charge of the train to force him from a place where he was safe to one where it would require extraordinary care to avoid injury. The quotation from Wood on Railroads, cited from Fisher v. W. Va. & P. R., 39 W. Vo. 380, 19 S. E. 583 (23 L. R. A. 758), to wit, that “one cannot voluntarily incapacitate himself from ability to exercise ordinary care for his own self-protection, and then set up such incapacity as an excuse for his failure to use care; and if the intoxication contributed to the injury as a proximate cause thereof it is a complete bar to any action for damages sustained in consequence of it,” is inapplicable. The plaintiff is not setting-up his intoxication in this case; but, on the contrary, the defendant is setting it up as an excuse for its negligence, notwithstanding' the plaintiff was in that condition. If the plaintiff was in that condition, and it was apparent to the conductor, it called for extra precaution on his part.—Johnson v. L. & N. R. R. Co., 104 Ala. 241, 16 South. 75, 53 Am. St. Rep. 39; L. & N. R. R. Co. v. Johnson, 108 Ala. 62, 19 South, 51, 31 L. R. A. 372. The court erred in refusing to exclude the testimony of J. H. Lynch as to what Will Shealy testified on a former trial. While it is true that, in order to testify as to what a witness swore to on a former trial, it is necessary only that the witness can state the substance, and not the exact words that were spoken,, yet it is necessary that he remember the substance of all of the testimony. The witness in this case showed, on cross-examination, that he did not remember even the [71] substance of certain parts of the testimony.—Magee v. Doe ex dem, etc., 22 Ala. 700, 720; Davis v. State, 17 Ala. 354, 357; Gildersleeve v. Caraway, Use, etc., 10 Ala. 260, 263, 44 Am. Dec. 485. There was no error in refusing to admit the bill of exceptions on the former trial; to show what the witness testified to.—Illinois Central R. Co. v. Ashline, 171 Ill. 313, 49 N. E. 521, 522. There was no error in giving that part of the oral charge numbered 1. There is no proof that it was obviously dangerous to go on the platform, so as to charge the intestate with contributory negligence in obeying the order of the conductor. “If the passenger be directed by an agent of the company, acting in the line of his duty, to pass from one car to another while the train is in motion, and the danger in doing so is not obvious, he will not be negligent in attempting to obey the agent’s direction, and if injury ensues the company will be liable.” 3 Hutchinson on Carriers (3d Ed.) p. 1399, § 1192; Id. p. 1408, § 1197. Charges 3, 4, and 5, requested by the defendant, should have been given, as counts 11, 12, and 13 charge that the train was being run at a dangerous and reckless rate of speed, and there is no evidence tending to show such speed.—K. C., M. & B. R. R. Co. v. Burton, 97 Ala. 240, 259, 12 South. 88. Charges 10 and 11, requested by the defendant, were properly refused, as counts 18 and 19 charged that the train was running at a high rate of speed, and there was evidence tending to show that. It was for the jury to determine whether the act of the conductor was willful or wanton. There was no error in the refusal to give charges 7, 8, 9, and 11, requested by the defendant, being the general affirmative charge as to counts 15, 16, 17, and 19. [72] Neither of these counts charges that the damnifying act was that of the defendant itself. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. Dowdell, C. J. and McClellan and Mayfield, JJ.,. concur.