Callaway v. Hart
| Decision Date | 02 April 1945 |
| Docket Number | No. 10913.,10913. |
| Citation | 146 F.2d 103 |
| Parties | CALLAWAY v. HART. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. H. Sadler, of Birmingham, Ala., for appellant.
William Conway and Clifford Emond, both of Birmingham, Ala., for appellee.
Before SIBLEY, McCORD, and LEE, Circuit Judges.
Writ of Certiorari Denied April 2, 1945. See 65 S.Ct. 915.
Ellis C. Hart filed this suit in the Circuit Court of Jefferson County, Alabama, for damages for personal injuries sustained by him, allegedly due to the negligence of the carrier, while he was en route as a passenger upon appellant's train from Birmingham, Alabama, to Dadeville, Alabama. The case was removed to the United States District Court, and there an answer was filed by appellant in which he admitted that the plaintiff was a passenger of the appellant; that plaintiff received certain personal injuries; and that the plaintiff received such injuries by falling or stepping from the train while it was in rapid motion. Appellant denied that he or his employees were guilty of any negligence, and also pleaded contributory negligence or assumption of risk on the part of plaintiff in that:
1. While in an intoxicated condition he voluntarily opened an outside door of the passenger coach and stepped from the train while it was in rapid motion; and,
2. While in an intoxicated condition he voluntarily and unnecessarily assumed a dangerous position on said coach by standing in an open door while the train was in rapid motion, knowing that he would likely or probably be injured; and that such negligence proximately contributed to the injuries complained of.
At the conclusion of the testimony, appellant moved for a directed verdict. The motion was overruled. Thereupon, appellant requested the court in writing to give a special charge dealing with defendant's alleged duty to prevent the plaintiff from moving about in the coach. The request was denied. A verdict for the plaintiff in the amount of $7,000 was returned by the jury, and from a judgment in accordance with the verdict, this appeal is prosecuted.
In this court, appellant contends that the court erred in overruling defendant's motion for a directed verdict, and in refusing defendant's requested charges reading as follows:
The plaintiff boarded the train, operated by the appellant, at Birmingham, Alabama, about 4:30 P. M., on July 3, 1942, en route to Dadeville, Alabama. The train consisted of five cars, three of which were for mail and express; the fourth was a combination baggage and passenger car; and the fifth was an ordinary passenger car. The combination car was divided by a partition; the front part was used for baggage, and the rear part for colored passengers. The passenger car was used for white passengers only, and in its rear a space was partitioned-off for use as a smoking compartment. The passenger cars were known as vestibule cars; they had platforms at each end, which, while the train was in motion, were enclosed by trap doors over the steps with doors at the sides. The toilet for ladies was in the front part of the passenger coach, and the toilet for men was adjoining and immediately to the rear of the smoking compartment.
According to plaintiff's testimony, he boarded the train at Birmingham, Alabama, having in his possession three pints of whiskey. He took a seat in the smoking compartment and took one drink about the time the train left the station. This, he said, was the only drink he had had. When some twelve or fourteen miles from Birmingham, he left the smoking compartment and went up to the front end of the coach to the toilet, but he could not get in as the door was locked. After waiting a few moments, he attempted to go through to the toilet in the coach ahead, and as he stepped from the coach door onto the vestibule the train gave a lurch or jerk, throwing him out of the door and off the train. He does not remember anything that occurred for several days thereafter, and the evidence shows that during that time he was in a hospital and under the influence of drugs.
Defendant introduced some eight witnesses, among them three lady passengers, and the conductor and flagman from the train crew. Two of the lady passengers testified that they observed the plaintiff immediately before he boarded the train, and that he was very much intoxicated; that in asking them a question he walked so close that they had to step back out of his way.
The conductor testified that he observed the plaintiff when he boarded the train, that he was under the influence of liquor at that time. He further stated that the plaintiff, upon boarding the train, went into the colored coach and lay down "in the seat with his feet out the window, with colored passengers all around him"; that he ordered the plaintiff to move out of that coach, as it was a colored coach, and the plaintiff then went into the white passenger coach. The conductor testified that as he was taking up the tickets, the plaintiff attempted "to get through the aisle" of the passenger car; that he was drunk or intoxicated and "was having to hold to the seats to get through the aisle." He further testified that in going through the coaches some two or three miles from where the accident happened, he saw the plaintiff standing out in the vestibule of the coach. The conductor did not ask the plaintiff to move from that position, nor did he make any effort to get the plaintiff from the vestibule into the car.
The flagman testified that when he saw the plaintiff he was in the smoker, lying down on a seat; that later he saw plaintiff at the front end of the car and talked with him; that plaintiff at that time was "drinking rather heavily and in a way looked like he was drunk and staggering." The flagman said that he inquired of the plaintiff what he was after and plaintiff replied that he was looking for water. The flagman showed him the water cooler "right there at him."
There was evidence that after the departure of the train from Birmingham plaintiff took one or more drinks in the smoker of the white coach, and, with one or two passengers, drank one of his three pints of liquor.
The three lady passengers who testified observed the plaintiff coming up the aisle of the coach just prior to the accident and stated that he, at the time, appeared to be under the influence of liquor and drunk; that, on reaching the door at the head of the coach, he had considerable trouble finding the knob of the door. It was at that time that the flagman came through and had his conversation with the plaintiff. All of the ladies testified that shortly after the flagman passed through, the plaintiff "went through the door the trainman had opened"; and two of them, a mother and daughter who were sitting together, said that after passing through the door to the vestibule platform, plaintiff turned to the right; then in a few minutes they saw him cross from the right to the left of the vestibule. Almost immediately thereafter two of the ladies saw him falling from the left side of the train.
There was sharp conflict in the testimony of the flagman and the conductor as to who closed the vestibule doors to the passenger cars; each claimed that it was his duty to close the vestibule doors and that he complied with said duty on leaving Birmingham. It is in evidence that the flagman, shortly before the accident, had opened the vestibule door on the left side of the train to pick up a train order. The message was picked up about three miles from the point where the plaintiff fell from the train.
It is conceded that this case is governed by the laws of the State of Alabama. Under Alabama law:
1. A common carrier is charged with the duty of exercising the highest degree of care, skill, and diligence in the transportation of passengers, and is held responsible for the consequences of the slightest negligence resulting in injury to persons sustaining that relation to it.1
2. A common carrier which takes upon its train a passenger who is intoxicated and who is not able to look out for his own safety, when it knows, or in the exercise of reasonable care should know, his condition, is bound to exercise a degree of care for his protection commensurate with his inability to guard himself from danger.2
3. A common carrier is not bound to furnish vestibule coaches, but having done so, it is its duty to keep the doors of the vestibule closed between stations and it will be liable for injuries to passengers for negligently allowing the doors to remain open.3
4. A passenger attempting to pass from one coach to another through the vestibule is not guilty of contributory negligence. Modern cars are so constructed as to make convenient and invite passage from car to car.4
5. Drunkenness is no excuse for wrongful conduct. The carrier is not bound to ascertain the condition of its passengers in that regard; nor required to have any special skill in foreshadowing the actions of intoxicated persons; nor will they be considered to be at fault in failing to give them special care unless their condition, known to the trainmen, renders them incapable of caring for themselves against the particular thing which causes the injury.5
There can be no doubt that the plaintiff, to the knowledge of the conductor, was perceptibly intoxicated when he boarded appellant's train; the conductor so states. His intoxicated condition was further brought home to the conductor by his action in going into the negro coach and lying down on the seat among the negro passengers. This occurred before the train left Birmingham.6 A carrier is not required to accept an...
To continue reading
Request your trial
-
Swilley v. Economy Cab Co. of Jacksonville
...obvious and unnecessary dangers of the defendant's making. See Tampa Electric Co. v. Fleischaker, 152 Fla. 701, 12 So.2d 901; Callaway v. Hart, 5 Cir., 146 F.2d 103, certiorari denied 324 U.S. 866, 65 S.Ct. 915, 89 L.Ed. 1421; Loftin v. Florida Cities Bus Co., 159 Fla. 514, 32 So.2d 166; Fa......
-
Red Top Cab & Baggage Co. v. Masilotti, 13337.
...v. Economy Cab Company of Jacksonville, Fla., 46 So.2d 173, 177. 8 City of Sebring v. Avant, 95 Fla. 960, 962, 117 So. 383. 9 Callaway v. Hart, 5 Cir., 146 F.2d 103. ...
-
Pomeroy v. Pennsylvania Railroad Company
...54 F.2d 202, certiorari denied 285 U.S. 551, 52 S.Ct. 407, 76 L.Ed. 941; Carter v. Kurn, 8 Cir., 1942, 127 F.2d 415; Callaway v. Hart, 5 Cir., 1944, 146 F.2d 103, 106, certiorari denied 324 U.S. 866, 65 S.Ct. 915, 89 L. Ed. 7 Gunning v. Cooley, supra; Shewmaker v. Capital Transit Co., supra......