Southern Ry. Co. v. Morgan

McCLELLAN, J. — Action by a passenger (appellee) against the carrier for personal injuries. Since there is an extended statement of the circumstances attending the event, from the viewpoint of both the litigants, on the former appeal of this case, there is no necessity to . reiterate. — Southern Railway Co. v. Morgan, 171 Ala. 294, 54 South. 626. We ruled on that appeal that there was error in not awarding a new trial upon the issue of contributory negligence of the plaintiff. We held, in substance, that the evidence strongly preponderated in favor of the view that the plaintiff contributed to his own injury by voluntarily, purposely stepping from the steps leading to the coach platform, thereby accepting as entirely negatived the plaintiff’s theory that he Avas involuntarily dislodged from the steps or platform of the car by a jerk or jar of the car or train from AArhich he was preparing to alight Avhen it was put in motion. A very influential factor in this conclusion was the finding by this court that plaintiff’s departure from the steps or platform of the car Avas removed “one or tAVo car lengths” from the point at which that part of the train lay when started forward, or from the point at which his daughter (Mrs. Lemly) left the steps of the car, and was caught, or attempted to be caught, by the flagman. It was the prevailing idea that a jerk or jar of the car, when, if at all, it occurred, could not, on any basis of reason, have wrought plaintiff’s involuntary dislodgement, and his consequent fall to the ground; that the normal relation [596] of cause to effect wholly refuted the notion that the jex’k ox’ jar could have taken place, and its effect, undex’ the circumstances, have accomplished so delayed a removal of plaintiff fx’oxxx the platfoxmx ox* steps of the car. The highest speed which the train could have, under the evidexxce, attained before the trainmen stopped it upon the occasion xvas not thought sufficient to accouxxt for the delay between the asserted caxxse axxd the effect — the jex’k or jar and his departxxre from the steps or platform of the car. On the retrial from which this appeal comes, the relation of the jerk or jar, asserted by. the plaintiff to have taken place and occasioned his removal from the steps or platfox’in, was a matter of xxiore particular ixxqxxiry and the subject of more definite and, it may be, different evidence. The evidence xxpon the issue whether plaintiff voluntarily stepped or junxped off or from the car remained, as before, in conflict. The conelxxsion on the issxxe was based oxx the determination of the question whether he was involuntarily dislodged by the jerk or jar, or whether he voluntarily stepped or junxped off. The whole evidence on the last trial has been carefully considered. Under the accepted rule of Cobb v. Malone, 92 Ala. 630, 9 South. 738, we cannot say that the trial court erred ixx overruling the xnotion for a new trial. The conclusion must have depended upon the credence given the testimony delivered by the witnesses on either side of the line. The trial court heard axxcl saw the witnesses ; was advantaged in the premises as we canxxot be. The delay between the jar or jerk, on which plaintiff relies for negligent cause of his removal from the car steps or platform, and his departure therefrom is reduced, if the testimony with respect to place and distance, as plaintiff presented it, was accepted. What [597] time and space may have intervened may have been reasonably attributed by the jury to plaintiff’s jostling, tottering struggle to prevent his falling. • He was old and feeble. He had baggage in one hand. He may have been, doubtless Avas, excited. His efforts to preserve himself may have been frantic, rather than suggested, or governed even, by Avhat might have been obvious and easy to a cool-headed and younger man. To those witnesses Avho testify that he jumped or stepped off, no improper motive or purpose should be ascribed. It Avas, at least, a hazy situation. If lights were there, they were not brilliant; did not disclose Avith the clearness of day. The jury might have found that the view those Avitnesses relate Avas the misake of concluding that an unbalanced, tottering man, on the steps or platform of a moving car, was voluntarily doing what, in fact, Avas the effect of his effort to regain an equilibrium a jar or jerk had lost to him. One, like plaintiff, so circumstanced might seem to others to have voluntarily cast aside all precaution, when, in truth, safety was the one natural, unpremeditated effort. That one such should appear, to some of the Avitnesses, to have jumped from the platform of a moving car is á circumstance tending, perhaps, to refute the idea that he in fact voluntarily, purposely projected his body therefrom. The fact that those ¡inside the cars did not feel or notice a jerk or jar of the cars may be absolutely true; and yet the difference in location and posture may account for the apparent conflict of testimony. It is commonly known that the effect of even normal movements of trains upon persons thereon depends upon whether they are standing or sitting; and it may well be that those sitting inside a moving, or initially moved, car would hot note a jerk or jar thereof that would attract the attention of and unsettle one standing on the platform or [598] steps thereof. There are, in the testimony of practically every witness, circumstances or facts opposed to those asserted by another witness, or by other witnesses. The whole issue was, as stated, one of fact. Another jury has passed upon the evidence. The trial judge, who heard the entire evidence on this trial, and so in the light of the expressed views of this court, and on the other trial as well, declined to disturb the verdict. We are not convinced that he erred in overruling the motion for a new trial. There is no merit in the insistence in brief for appellant that reversible error affected the refusal to appellant of special charges A, B, C, D, E, F, G, II, 12, 17, and 21. Charge 17 used the word “thereupon” in the place, probably, of the word “therefrom.” As written, the court was well authorized to refuse it, since it predicated contributory negligence upon a condition impossible in this case to be so affirmed. Charge 12 omitted to show in its hypothesis the essential factor that the attempt of plaintiff to get off of the train while it was in motion, and after being warned not to do so, and while it was being brought to a stop, was a proximately contributing cause of his injury. While concurring in this view, the writer is of the opinion that the charge possesses other faults. Charges A, B, D, and H were faulty in failing to hypothesize such a state of facts and circumstances as would authorize the legal conclusion that the plaintiff was contributorily negligent in leaving the platform or steps of the car. — K. C. M. & B. R. Co. v. Matthews, 142 Ala. 298, 309, 310, 39 South. 207; Dilburn v. L. & N. R. Co., 156 Ala. 228, 17 South. 210; B. R. L. & P. Co. v. Harden, 156 Ala. 244, 17 South. 327; Hunter v. L. & N. [599] R. Co., 150 Ala. 591, 13 South. 802, 9 L. R. A. (N. S.) 848. Charge E was inapplicable here; for the passenger on a railway does •not assume the risk of injury from a negligently permitted or occasioned start, or jerk or jar, of the car or train, Avlien he is preparing to alight, or is in the act of alighting, at his destination. Charge P was likewise inapplicable, for that the carrier cannot have exoneration from liability for injury to a passenger if the passenger is injured by a negligent starting of the car, then stationary, when the passenger is upon the steps thereof in the proper act of alighting therefrom at his destination. Charge G hypothesizes, among other things, that plaintiff stepped from the train Avhen it was in relatively rapid motion. It should have hypothesized, in this case, that plaintiff voluntarily stepped therefrom, since, if, in consequence of negligently caused motion of the train as he was in the course of alighting at his destination, he stepped involuntarily therefrom, the doctrine the charge evidently intended to invoke could have no application. In Charge D, requested by and refused to defendant, note was taken of the idea to be conveyed, in the premises, by the employment of the qualifying term “voluntary.” Under the evidence, it was not legally possible to give the affirmative charge on either of the controlling issues in the case. The judgment is affirmed. Dowdell, C. J., and Anderson and Somerville, JJ., concur in the opinion. Simpson, Mayfield, and Sayre, JJ., concur, except in the ruling upon the motion for new trial. They therefore dissent on the general result.