Birmingham Ry., Light & Power Co. v. Seaborn

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Birmingham Ry., Light & Power Co. v. Seaborn, 168 Ala. 658, 53 So. 241 (Ala. 1910)
• Decision Date: 12 May 1910
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. SEABORN.

53 So. 241

168 Ala. 658

BIRMINGHAM RY., LIGHT & POWER CO. v. SEABORN.

Supreme Court of Alabama

May 12, 1910

Rehearing Denied June 30, 1910.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Isa A. Seaborn against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Plaintiff was a passenger on defendant's cars, and alleges that as a proximate consequence of the negligence on part of the defendant in transporting her she was injured. The specific negligence alleged was that plaintiff desired to alight from the car at a station called West Highlands on defendant's car line, and that the defendant negligently carried her and some others with her some distance beyond this stopping place, whereupon the conductor told her that it was a short and easy walk back to the station, and that while making the attempt to get back to the station plaintiff had to cross a track, and fell on the trestle and received certain injuries. The defendant denied the happening, and also set up contributory negligence on part of the plaintiff in attempting to walk said trestle.

The following charges are referred to as being given for the plaintiff: "(4) I charge you that positive evidence of the fact, if from a reliable and trustworthy source, is more convincing and entitled to more weight than negative testimony from a source equally as reliable. (5) I charge you that evidence is positive when a witness states that an event did or did not occur, and it is negative when a witness says that he did not see or hear a certain thing; and when there is both positive and negative evidence of a particular matter in dispute, and the witnesses are of equal credibility, the positive testimony is entitled to the greater weight, if both parties have equal opportunities to know the fact."

The following charge was refused the defendant: "(8) If you believe the evidence in this case, you cannot find for the plaintiff."

Tillman Bradley & Morrow and L. C. Leadbeater, for appellant.

Allen &amp Bell, for appellee.

ANDERSON J.

The duty of a railroad company, as a common carrier of passengers, is not performed until it delivers its passenger in proper condition at the station to which he has paid his fare; and where a passenger on a railroad train is carried past his point of destination, it is the duty of those in charge of the train to either back the same to the station or to notify the passenger how and when to alight, warn him of any dangers incident to alighting at that point, and give him such assistance or instructions as may be necessary to assure his safe return to the station; and if, without the fault of the passenger, he is injured in making his way back to the station, the company is liable therefor. Hutchison on Carriers, § 1126 (3d Ed.) and note; New York R. R. v. Doane, 115 Ind. 435, 17 N.E. 913, 1 L. R. A. 157, 7 Am. St. Rep. 451; Adams v. R. R. Co., 100 Mo. 555, 12 S.W. 637, 13 S.W. 509. This liability only arises, however, when the passenger has been wrongfully or negligently carried beyond his destination. If he has been carried beyond his destination, through no wrong or neglect of the servants of the company, and is safely landed at some other station, the company is not liable for any injuries he may sustain in attempting to return to the proper station, unless, of course, they attempted to transport him back and he was negligently injured. And as no duty would rest upon the defendant to get him back to the station, beyond which he had been carried, through no negligence of the carrier, the act of its servants in advising or directing him as to his return would be gratuitous and for which the company would not be liable.

The gravamen of the present action, therefore, must be predicated upon the negligent taking of the plaintiff beyond her destination, and the misdirection by the defendant's servants or agents as to a return, and not upon a mere misdirection, not preceded by negligently carrying her beyond her station. The oral charge of the court, excepted to by the appellant, both before and after correction, in effect instructed that the plaintiff had a cause of action for a negligent misdirection and pretermitted hypothesizing the fact, that she had been negligently carried beyond her destination. It was in the alternative and held the defendant liable if plaintiff was negligently carried beyond her station "or" if the plaintiff was wrongfully misdirected after she got off. The attempted correction did not cure the defect, as it authorized a recovery upon negligence growing out of a misdirection and pretermitted the fact that she must have been negligently carried beyond her destination. This being a misstatement of the law, the error...