Central of Georgia Ry. Co. v. Bagley

DOWDELL, C. J. The second count of the complaint, to which a demurrer was interposed and overruled, states a good and sufficient cause of action. The wrong complained of in this count and from which the alleged injury resulted consisted in the averred negligent act of the defendant’s servant, the conductor on “said train,” in requiring the plaintiff, an old and infirm woman, to leave “said train” at a place “highly dangerous” for her to do so. There is a general averment of negligence and facts stated as to the dangers of the place for an old and infirm person to disembark. The complaint we think was unobjectionable as to any of the stated grounds of demurrer, and in overruling it the action of the court was free from! error. The cause was tried on the plea of not guilty, and special pleas of contributory negligence. The plaintiff’s evidence showed that the plaintiff as an intending passenger boarded the defendant’s train at Woodlawn Junction, a suburb of the city of Birmingham, for return passage to her home in Columbus, Ga., on an excursion or round-trip ticket which she had purchased and paid for from the defendant railroad company at said Columbus, Ga., and on which she had been carried from — 619 — Columbus to Birmingham a lew days previously; that she boarded the train in good faith, believing that she-had the right to do so, and to be transported back to her home in Columbus on said ticket, which she tendered to the conductor, but which he refused to accept as fare for transportation because the same had not been “validated” as provided for in the ticket contract, and required the plaintiff to leave the train. The plaintiff testified: That she did not know of the required “validation” of the ticket until so informed by the conductor when she tendered it to him, and that, when she purchased it, she was not required by- the selling agent to sign her name. The evidence of the plaintiff further showed that she was 57 years old at the time of the alleged injury, and was infirm; that the time she was required to leave the train was in the early miorning before good daylight, the car she was leaving being lighted up, the morning foggy and very cold, the ground frozen. She carried a heavy suit case, and the conductor saw her when she was in the act of quitting the car, but offered no assistance. She left the car from the rear platform, and the distance from the steps of the platform to the ground was between three and four feet. That at the time she could not tell the distance to the ground from the step; it being too dark for her to see the ground. That, when the conductor told her she would have to get off, she asked him if she must get off at that place, and he replied, “Yes; right here.” These were facts relevant and competent in evidence to go to the jury under the issues, and were properly admitted by the court. While the defendant was under no legal duty to carry the plaintiff as a passenger on the return ticket without the same having been “validated” as provided in the contract, and had the right to eject her upon refusal to — 620 — .pay fare, yet in ejecting her the defendant was bound to consider her safety, and not to eject her at a dangerous place. In Hutchinson.on Carriers, § 1084, it is said: “And in general it may be said that while the carrier may not be required to pay regard to the mere convenience of the passenger, when he has forfeited his right to be carried by his conduct or refusal to comply with •his regulations, he cannot eject him in such manner as to endanger his safety, as by ejecting him while the train is in motion, or in a dangerous place (italics ours), without making himself liable for the consequences.” And in section 1088 (same author) it is said: “Regard must be had for the age, sex, and condition of the passenger, and the surrounding circumstances, such as the state of the weather, the time of the day, the condition of the country. * * * The question of the suitableness of the time and place is therefore ordinarily one for the jury.” In the case of Louisville & Nashville Railroad Company v. Johnson, Adm'x, 108 Ala. 62, 66, 19 South. 51, 53 (31 L. R. A. 372), this court, speaking through Haralson, J., said: “It is opposed to authority and reason and the common instincts of humanity to allow, because the passenger is intoxicated, whether to a greater or less degree, and misbehaves in a manner authorizing the conductor to expel him from the train, that such expulsion may be made without the exercise of due care for the safety of the passenger, having reference to the time, place and surroundings.” So it appears upon reason and authority that the defendant, in the exercise of its right in the expulsion of the plaintiff: from its train, was bound to act with due care for her safety; and, in the■ determination of this question, the elements of timje, place, condition of the weather, the age and sex of the party are to be taken — 621 — into consideration by the jury. The carrier is bound to take notice of the character of the place at which he exercises his right of ejecting or expelling a - passenger from his train. And whether or not it is a dangerous place becomes a question of fact for the determination of the jury under all the attendant circumstances. There was no error in overruling defendant’s objections to questions put to the witness Moncrief on cross-examination. It does not appear from the record that the purpose of the questions was to lay any predicate for impeachment of the witness. — Floyd v. State, 82 Ala. 21, 2 South. 683. The latitude of a cross-examination for the purpose of testing the memory, sincerity, etc., of the Avitness, is largely within the discretion of the trial court, and may and often does relate to immaterial matters without the issues of the case. — Southern Railway Co. v. Brantley, 132 Ala. 657, 32 South. 300; Sloss-Sheffield Steel & Iron Co. v. House, 157 Ala. 663, 47 South. 573; Noblin v. State, 100 Ala. 14, 14 South. 767; Tobias & Co. v. Triest & Co., 103 Ala. 670, 15 South. 914. There Avas no error in refusing to alloAV the witness Moncrief, on the objection of the plaintiff, to give his opinion as an expert as to whether the place was a reasonably safe place for the plaintiff to leave the train. This Avas no matter for expert testimony, and, as Avell stated by the trial court, it was for the witness to state the facts as to the nature of the place, and for the jury to determine whether it Avas reasonably safe. The plaintiff in leaving the train at thé place where she was required by the conductor to leave under the circumstances had a right to assumie that it was a safe place for her to get off, and in getting off with her suit case in her hand could not be said, as a matter of law, — 622 — to have been guilty of negligence; and the question was one properly left to the jury and the general affirmative charges requested by the defendant along this line under the pleas of contributory negligence were properly refused. Assuming that the plaintiff boarded the train in good faith and honestly believing that she would be carried on her return trip ticket back to Columbus, G-a., to all intents and purposes as to her safety in being put off of the train, there existed the relation of passenger and carrier, and the defendant was under the same duty of rendering needful assistance in discharging the plaintiff from the train as if she had been a passenger. Written charges 20, 21, and 22, requested by the defendant, were therefore properly refused. Charge 26, if not otherwise faulty, was properly refused as being argumentative. Charge 27 was invasive of the province of the jury and was properly refused. Charge 28, refused to the defendant, has been frequently condemned by this court. The court is not required to tell the jury that there is no evidence of a particular fact. Charge 12 was not only misleading in tendency, but was otherwise inherently bad. The duty rested on the defendant’s conductor to know of the perils of the place where he required the plaintiff to leave the train. Charges 14, 16, 17, and 19, refused to the defendant, are each and all of them in their statement of the law opposed to the views we entertain, and as herein above expressed, and no error was committed in their refusal. Charge 24 assumes that the long step down from the steps of the car to the ground was obvious, while the plaintiff testified that she could not see the ground as — 623 — she was descending the steps of the car, and the charge was therefore bad, besides being misleading in other respects. We fail to find any reversible error in the record, and the judgment is affirmed. Affirmed. Simpson, McClellan, and Mayfield, JJ., concur.