Alabama G. S. R. R. v. Foley

SOMERVILLE, J. (1) “One who comes upon the premises of a railroad company, in the usual course of business with it, for the purpose of loading and unloading, or delivering and receiving freight, is not a mere licensee, but is entitled to the care due one who is invited to come upon the premises of another.” —3 Elliott on Railroad, § 1248, p. 581. And when a consignee of freight undertakes to unload and remove it from the car, with [395] the consent of the carrier, express or implied, it is the duty of the carrier to use due care to avoid injuring, him while so engaged ; that is to say, to take such precautions as a man of ordinary prudence would observe under the circumstances. — 2 Thomp. on Neg. § 841- See, also, State, Use of Mummaugh v. Railroad Company, 98 Md. 125, 56 Atl. 394, 103 Am. St. Rep. 388, 1 Ann. Cas. 598, and note; S. F., etc., R. R. Co. v. Ford, 10 Ariz. 201, 85 Pac. 1072, 1073. (2) • When a car has been placed by the carrier on a side track or a “house track,” to be unloaded by the consignee of its freight, the car and its immediate environments thereby become a freight house pro tempore. — Ladd v. Railroad Co., 193 Mass. 359, 79 N. E. 742, 9 L. R. A. (N. S.) 874, 9 Ann. Cas. 988. Manifestly, one who is engaged in unloading such a car is under no duty to keep any active lookout for engines or trains which may enter upon the siding and jostle or move the car, but may rely upon receiving due notice from the carrier’s servants of such intended action; and we think a necessary corollary to this proposition is that the carrier’s servants must use reasonable diligence to discover the possible presence of any person lawfully on the car for the purposes stated, before doing any act perilous to his safety. (3) If the car is to be pushed or jostled, it is clear that due care on the part of the carrier demands no less than reasonable notice to the person on the car of such a purpose, in order that he may reasonably withdraw from the car if he chooses to do so. But notice in this connection does not necessarily mean knowledge; and when the carrier’s servant has made the announcement in the presence of the plaintiff in such terms and tones as would be heard and understood by ordinary persons so situated, this would ordinarily be sufficient. (4-6) The evidence in this case was conflicting, and the sufficiency of the notice given to plaintiff by the depot agent, both as to manner and timeliness, was a question for the jury. The instructions given to the jury for its determination were in accordance with the law as above stated, but the oral charge contains one or two statements which seem to be contradictory of its general tenor, and capable, no doubt, of misleading the jury. It is not accurate to say that it was the duty of defendant’s servants to see that those in the car “got knowledge,” since their [396] duty was only to give them reasonable notice in a. reasonable way under the circumstances; such notice, in short, as would naturally result in knowledge. Nor is it accurate to say as matter of law that “a mere announcement out there that the train was coming would not be sufficient unless every one heard it.” Its sufficiency, under all the evidence, was for the jury, whether every one heard it or not. Although other parts of the oral and written charges stated the law correctly, we can hardly affirm with assurance that the jury must have understood and acted on the law as correctly stated. (7) Notice to plaintiff’s hired men standing about the car was not per se notice to plaintiff, as was properly stated in the oral charge to the jury. These men were mere ministerial servants, and were not engaged in executing an agency for plaintiff with respect to her personal safety while she was in or about the car. Their service was manual labor in the removal of the freight from the car, and this capacity, to receive notice for her, if any they had, was limited to their immediate occupation. —2 Corp. Jur. 865, 866; and cases cited in note 95; Ala. W. R. R. Co. v. Bush, 182 Ala. 120, 62 South. 89. (8) Defendant’s plea 6 was defective, in that neither the complaint nor the plea show any facts imposing upon plaintiff the duty of keeping a lookout, while in or about the car, for approaching engines or trains, and hence the whole plea rests upon legal conclusions only. Demurrer to the plea was overruled, however, and defendant requested the general affirmative charge on this plea. It will suffice to say that the evidence did not show that plaintiff negligently failed to keep such a lookout, and the-charge requested was properly refused. (9) Assuming that the witness Walls was qualified by due observation and experience (and no objection was made to his answer on that ground), there was no error in allowing him to state that plaintiff did not have time to leave the car after she received notice and before the car was pushed up the track.— B. R., L. & P. Co. v. Glenn, 179 Ala. 263, 60 South. 111. (10) Moreover, the answer was clearly material evidence, and the general objection for incompetency could not reach other infirmities, even had they existed. (11, 12) Plaintiff’s husband; in describing the extent of her injuries, said: “The only thing I know is that she is no earthly [397] account to me like she used to be. She can’t make a fire, bring in a back log! she can’t even wash and cook, and I have to help do that, and I never did have to help do that before.” The italicized portions were separately objected to by defendant. They were clear and emphatic declarations of the loss and inconvenience suffered by the husband, were wholly outside the issues, and should have been excluded on defendant’s motion. We cannot safely assume that such statements were without prejudice to defendant, and must therefore hold that their admission was reversible error. (13) Count 5 of the complaint sufficiently shows the duty of due care owed by defendant to plaintiff, and it was enough to charge that that duty was negligently breached by the act alleged, without also alleging that no notice was given to plaintiff before the car was moved and jostled. (14) This was defensive matter, as to which the burden of proof was upon defendant. For the errors noted, the judgment will be reversed, and the cause remanded. Reversed and remanded. Anderson, C. J., and Mayfield and Thomas, JJ., concur.