Alabama Power Co. v. Hall

• Decision Date: 22 January 1925
• Docket Number: 3 Div. 693
• Parties: ALABAMA POWER CO. v. HALL.
• Court: Alabama Supreme Court

103 So. 867

212 Ala. 638

ALABAMA POWER CO. v. HALL.

3 Div. 693

Supreme Court of Alabama

January 22, 1925

Rehearing Denied April 16, 1925

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages by M.C. Hall, as executor of the will of R Cantelou, deceased, against the Alabama Power Company, for wrongful death of the testator. Judgment for plaintiff, and defendant appeals. Affirmed.

Martin Thompson, Foster & Turner, of Birmingham, and Steiner, Crum & Weil, of Montgomery, for appellant.

Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

BOULDIN J.

This is an action in damages under the Homicide Act, for negligence of defendant resulting in the death of plaintiff's testator. The negligence relied upon is the breach of duty owed by a common carrier to a passenger. The case supported by the plaintiff's evidence may be briefly stated thus:

On Bell street in the city of Montgomery, defendant's street car line crosses over a railroad cut some 30 feet in depth. At the time of the accident the trestlework, supporting the track, was undergoing repairs, and for the time the street cars stopped at either end, and passengers transferred by walking over a public bridge, located north of the trestle, leaving an open space between them several feet wide. The city had erected a barrier from the east end of the bridge to defendant's roadway--the end of the crossties some 2 feet 7 inches outside the north rail. Defendant's roadway was paved as part of the street, extended beyond the barrier some 10 feet, and joined up with the trestle. The break of the cut makes in at an angle from the barrier toward the trestle, touching the pavement between the barrier and the trestle. Here a pedestrian could step directly from the pavement into the cut. This was the place of the accident.

On February 2, 1924, deceased was a passenger on a street car of defendant going west; reached this point at about 6:30 p.m.; the car stopped; he, with some 20 other passengers, proceeded to disembark. On leaving the car, the deceased fell into the cut, receiving injuries from which he died.

On the issue of negligence vel non, plaintiff's evidence tended to show: That the usual stopping place of the car was about a car length, 30 feet, from the trestle; that on this occasion the car came to a stop 8 to 15 feet therefrom; that passengers were invited to alight on the south side of the car at the front, pass across the track, over the street space of some 10 feet, thence onto the bridge; that while they were alighting, about the time deceased stepped off the car, the conductor pulled the trolley, preparatory to the return trip, thus cutting off the lights and leaving the place in darkness--such darkness that passengers coming out of the lighted car could not reasonably see their way of egress; and that deceased so came to his death.

The defendant's evidence tended to show: That the car was stopped at the usual place--a car length from the trestle; that a timber or timbers were across the track between the car and place of danger; that a nearby street light gave such light that a person in the exercise of ordinary care was not endangered; that deceased was familiar with the place; and that he was under the influence of intoxicants.

These defensive matters were controverted. The evidence presented issues of fact, whose solution was for the jury. It readily appears the gravamen of the case made by the plaintiff is one of negligent omission of duty by the carrier toward its passenger in the matter of furnishing a safe place of debarkation.

The defenses are: (1) A denial of such failure of duty; (2) that the relation of carrier and passenger, with the duties incident thereto, had ended at the time of the accident; and (3) deceased was guilty of negligence which proximately contributed to his death.

"It is the duty of common carriers of passengers, including street railways, to exercise the highest degree of care in providing reasonably safe and convenient places for the disembarkation of their passengers. Montgomery St. Ry. Co. v. Mason, 133 Ala. 508, 527, 32 So. 261; Mobile, etc., R. Co. v. Walsh, 146 Ala. 295, 40 So. 560; 10 Corp.Jur. 924, § 1348; Id. 944, § 1363. And when a train or car stops at any place other than a regularly appointed station or stopping place, and passengers are there expressly or impliedly invited to alight, it is the carrier's duty to select a place that is reasonably safe and convenient, and it is its further duty, acting through its servants in charge, to know whether the place selected is of such a character. 10 Corp.Jur. 914, § 1340; Id., 939, § 1360; Mobile, etc., R. Co. v. Walsh, 146 Ala. 295, 40 So. 560; N.B. Ry. Co. v. Liddicoat, 99 Ala. 545, 13 So. 18. And if, nevertheless, there is danger to an alighting passenger from obstructions, or surface inequalities, or other sources, not known to him and not plainly open to his observation, and of which the carrier's servants are bound to take notice, it is the duty of the latter to warn the passenger of the danger. 10 Corp.Jur. 925, § 1349." Mobile Light & R. Co. v. Therrell, 205 Ala. 553, 555, 88 So. 677, 678.

The above quotation, opinion by Mr. Justice Somerville, states the law with clearness and accuracy. We attempt no further statement. See also, Montgomery Light & Power Co. v. O'Connor, 204 Ala. 24, 85 So. 384.

"Differing in degree, at least, from the rule prevailing in other jurisdictions with respect to the time when the relation between a street railway carrier and a passenger ceases (10 C.J. pp. 625, 626; 4 R.C.L. pp. 1047, 1048, and notes), in this jurisdiction the accepted rule is that the relation is not terminated by the passenger's mere act of leaving the car, 'but continues until he has a reasonable opportunity to leave the car and the roadway of the company,' after the car has reached the station or stopping place to which he is entitled to be carried. Melton v. B.R., L. & P. Co., 153 Ala. 95, 97, 45 So. 151, 16 L.R.A. (N.S.) 467; B.R., L. & P. Co. v. O'Brien, 185 Ala. 617, 621, 64 So. 343." Willingham v. Birmingham Ry., Light & Power Co., 203 Ala. 352, 83 So. 95; Montgomery St. Ry. Co. v. Mason, 133 Ala. 508, 32 So. 261.

The case made by plaintiff's evidence, supported by numerous witnesses, mainly passengers alighting from the car or waiting to board it for the return trip, fully warranted the jury in finding a failure of duty to furnish a safe place for alighting, and that this duty had not ended by termination of the relation of carrier and passenger at the time of the injury. In Willingham v. Birmingham Ry., L. & P. Co., 203 Ala. 351, 83 So. 95, the passenger had alighted in a safe place so far as under control of the carrier, and was going away from the car on a public street, when he was assaulted by defendant's motorman. There was no division of the court on the principle of law stated in the above excerpt. The majority opinion expressly differentiates the case from those presenting the duty to furnish a safe place for debarkation.

The duties of carrier to passenger are successive as well as concurrent. The duty to furnish a safe vehicle and to safely operate it ends when the passenger alights and clears the vehicle, no question of injury from subsequent movement arising; but the duty to provide a safe place for alighting arises when the occasion comes for use of such place. To say this duty is ended when the passenger alights and passes from the physical control of the carrier, is to say the duty ends when it begins--that there is no such duty. Here there were two concurring elements of the danger complained of, viz.: The place for alighting at an unusual point near a dangerous pitfall; and shutting off the lights so as to leave the passengers to make their way from the car in darkness. The place may not have been dangerous in open daylight, but, if rendered so by darkness, its selection raised the duty to give warning or to maintain lights for the like purpose. Both of these elements of danger being under the carrier's control, the duty to the passenger did not end until he had reasonable opportunity to pass beyond the zone of danger created by these conditions. So it matters not whether the passenger was invited to alight in darkness, or it was thereafter made dark by action of defendant's servants, unless the passenger had passed out of danger, or in the exercise of ordinary care would have so discovered the conditions as to avoid the same. There was no error in refusal of the affirmative charge to defendant upon the view that the relation of carrier and passenger had terminated, nor in submitting that issue to the jury upon the conflicting evidence, with proper instructions. This, we think, the law of the case, without regard to any question of the passenger having received a transfer with the view of continuing passage on another car after crossing over the cut on the public bridge. Indeed, it does not seem that fact was material. A transfer is a mere ticket entitling the holder to resume passage. It does not necessarily carry a duty to look out for his personal safety during the interim. Thus, if defendant furnished a safe place to alight and go on his way to the bridge, there would be no duty to conserve his safety while on the public bridge, but it would be resumed when he again presented himself for passage.

Neither was the defendant due the affirmative charge on the plea of contributory negligence. Whether the deceased was under the influence of intoxicants at all, and, if so, whether to such extent as put him, by his voluntary act, in such condition that he failed to exercise that degree of care required under the circumstances, were issues wholly for the jury.

So also touching the...