Alabama City, G. & A. Ry. Co. v. Cox

• Decision Date: 07 June 1911
• Citation: 173 Ala. 629,55 So. 909
• Parties: ALABAMA CITY, G. & A. RY. CO. v. COX.
• Court: Alabama Supreme Court

55 So. 909

173 Ala. 629

ALABAMA CITY, G. & A. RY. CO. v. COX.

Supreme Court of Alabama

June 7, 1911

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Mary E. Cox against Alabama City, Gadsden & Attalla Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint consisted of four counts, and, as amended, count 1 states the relation between the parties to have been that of passenger and carrier, the payment of fare, the information to the conductor in charge of the car that the plaintiff desired to alight at Car Works station, and the negligent failure of the servants or agents of the defendant in charge of the car to stop said car at said station, which was a regular and convenient place for passengers to alight, and which was located on the public highway, coupled with the further allegation that the servants or agents in charge of the car negligently allowed said car to pass by and beyond said station 40 yards or more before stopping said car. Then follows the catalogue of her injuries, which are alleged to be permanent. It is also averred that the only apparent way to plaintiff or open way for her to return to said station from the point where she was put off was along defendant's line of railway. This was well known to the conductor, or by the exercise of ordinary diligence should have been known to plaintiff; but the existence of the railroad crossing on said line of railway, and the existence of the trestle or culvert between the point where plaintiff was put off and the station of her destination, rendered said way dangerous to be traveled by plaintiff at the time and under the circumstances stated. The second count was charged out. The third count alleges the plaintiff's injuries to have resulted proximately from the negligence of the conductor in charge of the car upon which she was a passenger, in that at the time he caused plaintiff to alight from said car he knew, or by the exercise of ordinary diligence ought to have known, that plaintiff would probably return to the Car Works station by walking along defendant's railway track, and also knew of the existence of said railway crossing, and said trestle or culvert, and also knew, or by the exercise of reasonable diligence could have known, that the existence of such crossing or culvert or trestle rendered it dangerous to plaintiff to walk along said railroad track to said Car Works station, without the knowledge or existence of such switch and culvert or trestle and also knew, or by the exercise of ordinary diligence should have known, that the existence of the conditions above mentioned were unknown to plaintiff, and negligently failed to notify or warn plaintiff of the existence of said railroad crossing, and of the existence of said switch, or trestle, or culvert. The fourth count avers the negligent carrying of plaintiff beyond her destination, and the negligent failure to stop at the station, with the further averment that the route which she took to travel back to such station was the one which a reasonably prudent person would have taken under the circumstances surrounding plaintiff at the time. The demurrers raise the point discussed in the opinion.

The charges referred to in the opinion are as follows: (5) "If the injuries resulting to plaintiff were proximately caused by the defective eyesight of plaintiff, she cannot recover." (6) "If the defect of eyesight of plaintiff was an intervening sufficient cause of her injury she is not entitled to recover." (7) "The court charges the jury that the plaintiff in her complaint does charge that her injuries were caused by her defective eyesight, not that the defective condition of her eyesight contributed to her injuries. If the jury are satisfied from the evidence that plaintiff's injuries were proximately caused by the defective eyesight, she cannot recover." (8) "If the plaintiff's injuries would likely not have occurred, had it not been for the defective condition of plaintiff's eyesight, she cannot recover." (9) "If the jury are reasonably satisfied from the evidence that plaintiff's injury would not have occurred, had it not been for the defective condition of her eyesight, she cannot recover."

Hood &amp Murphree, for appellant.

Goodhue & Blackwood, for appellee.

MAYFIELD J.

The appellee, a woman about 60 or 65 years of age, sued appellant, a common carrier of passengers.

Each count of the complaint upon which the trial was had, as last amended, alleged the relation of passenger and common carrier between plaintiff and defendant, and therefrom a duty on the part of the latter to carry plaintiff as a passenger, in accordance with a contract alleged, from the city of Gadsden to a station upon its line known as Car Works station; and then alleged a breach of that duty, in that the carrier failed to stop its car at the station of the plaintiff's destination, but carried her by and beyond it some 40 yards or more, and there put her off; that the plaintiff, in attempting to find her way back to the station, fell over a switch of defendant's railway, and thereby injured herself; and that later, while still on her way back to the station, along the defendant's railway track, she stepped into an open culvert or trestle, thereby severely injuring herself. Each count contains the usual and appropriate averments as to the injuries and damages suffered by the plaintiff; and each alleges that such injuries and damages were the proximate result of the negligence of the defendant's agents or servants in charge of the car, in failing to put her off at her station, and carrying her such a distance beyond it in the nighttime. Each count of the complaint, as last amended, stated a good cause of action and was not subject to any grounds of demurrer assigned as error.

It was not necessary that the complaint should allege that the defendant's conductor was cognizant that the plaintiff did not know of a safe route from the point where she alighted back to the station; nor that the defendant's servants or agents had reason to believe that the plaintiff would encounter danger at the place and time, and in the manner, alleged. It was the duty of the defendant to put the plaintiff off at her station, and not some 40 yards beyond it.

It was not necessary for the complaint to negative the fact that there was an open, obvious, and safe way, which the plaintiff could have traveled, from the point where she was put off, back to the station. If this were so, it would be proper matter for a plea, and not for the complaint to negative.

The complaint averred the advanced age and feeble condition of the plaintiff, and that it was in the nighttime that she was carried some 40 yards past her station; this being an actionable breach of duty on the part of the defendant towa...