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

Decision Date14 February 1907
Citation149 Ala. 487,43 So. 98
PartiesALABAMA CITY, G. & A. RY. CO. v. BATES.
CourtAlabama Supreme Court

Appeal from Circuit Court, Etowah County; W. W. Haralson, Judge.

Action by Perryman Bates against the Alabama City, Gadsden & Attalla Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Burnett Hood & Murphree, for appellant.

Howard & Isbell and Goodhue & Blackwood, for appellee.

TYSON C.J.

This case was tried upon the fourth count of the complaint, which was added by amendment. The plaintiff's injuries are alleged to have occurred while he was in the act of boarding one of defendant's cars as a passenger, while the car was stationary at a regular stopping place for the reception of passengers, and to have been caused by the negligent act of defendant in putting the car in motion when he was in a position that rendered it perilous to do so, thereby causing him to be violently thrown down, etc. The defendant's pleas were the general issue and contributory negligence. The contributory negligence alleged was: First, that plaintiff negligently attempted to board the car, while it was in motion, in front of a trunk near defendant's track, and while thus attempting to board said car he ran over or against said trunk, which caused him to fall, etc.; second that plaintiff took hold of a handhold fastened to said car and after said car was placed in motion, and while still holding onto said handhold, negligently walked along by the side of the car, keeping pace with it, when he ran over or against a trunk that was near defendant's railway track which caused his fall; and, third, that plaintiff negligently attempted to board said car, while it was in motion, in front of a trunk standing on a platform near defendant's track, and while walking along by the side of said car on said platform, and just before plaintiff reached said trunk, he turned and looked away from the direction of said trunk, whereupon he ran over or against said trunk, which caused him to fall, etc.

We have set out the pleadings in detail and with particularity, in order that the issues of fact presented by them may be readily seen. It is scarcely necessary to say that the burden of proof was upon the plaintiff to establish every material allegation of his complaint. If he failed to show that he was a passenger at the time of his injury, or if that relation between him and the company is shown, and his injuries were caused other than by the negligent act of defendant in putting the car in motion, he was not entitled to recover. In other words, if he was not a passenger at the time he received his injuries, or if he was a passenger and his injuries were caused by his falling over the trunk, which was on the platform, in his attempt to board the car while it was in motion, then he has failed to prove the allegations of his compaint, and cannot recover. Of course, if the defendant proved either of its pleas of contributory negligence, this would defeat the plaintiff's action.

One of the contested issues of fact upon the trial was whether the plaintiff was a passenger. The general principles applicable and controlling in the solution of the question under the pleadings and evidence in this case may be stated to be these: A passenger may be defined to be one who undertakes with the consent of the carrier, to travel in a conveyance furnished by the latter, otherwise than in the service of the carrier as such. Shearman & Red. on Neg. § 488. The relation of carrier and passenger is dependent upon the existence of a contract of carriage, express or implied, between the carrier and passenger, made by themselves or their respective agents; and this relation begins when a person puts himself in the care of the carrier or directly within its control, with the bona fide intention of becoming a passenger, and is accepted as such by the carrier. There is, however, seldom any formal act of delivery of the passenger's person into the care of the...

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11 cases
  • Nashville, C. & St. L. Ry. v. Crosby
    • United States
    • Alabama Supreme Court
    • October 14, 1915
    ... ... Rehearing ... Denied Nov. 18, 1915 ... Appeal ... from City Court of Gadsden; John H. Disque, Judge ... Action ... by Mrs. Dora Crosby against the ... L. & N.R.R. Co. v. Glascow, 179 Ala. 251, ... 60 So. 103; Ala. City G. & A. Ry. Co. v. Bates, 149 ... Ala. 487, 43 So. 98. The trial court committed no error in ... overruling the demurrer ... ...
  • Birmingham Electric Co. v. Cleveland
    • United States
    • Alabama Supreme Court
    • May 5, 1927
    ... ... 403 216 Ala. 455 BIRMINGHAM ELECTRIC CO. v. CLEVELAND. 6 Div. 686 Supreme Court of Alabama May 5, 1927 ... Rehearing ... Denied June 23, 1927 ... Appeal ... from ... formal action on the part of its conductor. What is said in ... Alabama City, etc., R.R. v. Bates, 149 Ala. 490, 43 ... So. 98, is true enough, but the opinion in that case ... ...
  • Atlantic Coast Line R. Co. v. Webb
    • United States
    • Florida Supreme Court
    • October 27, 1933
    ... ... his becoming a passenger.' Ala. City, G. & A. R. R ... v. Bates, 149 Ala. 490, 43 So. 98, 99, and cases there ... cited; Id., 155 ... ...
  • Oklahoma Ry. Co. v. Roebuck
    • United States
    • Oklahoma Supreme Court
    • December 4, 1951
    ...Co. v. Norris, 4 Ala.App. 363, 59 So. 66; [North Birmingham] St. Ry. Co. v. Liddicoat, 99 Ala. 545, 13 So. 18; Ala[bama City, G. & A.] R. Co. v. Bates, 149 Ala. 487, 43 So. 98. And when the invitation is to be withdrawn by the operation of an automatic device for closing the door of the car......
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