Carlisle v. Central of Georgia Ry. Co.

• Citation: 62 So. 759,183 Ala. 195
• Parties: CARLISLE v. CENTRAL OF GEORGIA RY. CO.
• Decision Date: 22 May 1913
• Court: Supreme Court of Alabama

62 So. 759

183 Ala. 195

CARLISLE v. CENTRAL OF GEORGIA RY. CO.

Supreme Court of Alabama

May 22, 1913

Appeal from Circuit Court, Coosa County; A.H. Alston, Judge.

Action by Mrs. Bennie Mae Carlisle against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

See also, 2 Ala.App. 514, 56 So. 737.

Riddle Ellis, Riddle & Pruet, of Goodwater, and Riddle & Burt, of Talladega, for appellant.

Barnes & Denson, of Opelika, for appellee.

DE GRAFFENRIED,J.

Mrs Bennie Mae Carlisle brought this suit against the Central of Georgia Railway Company for the recovery of damages which she alleges that she received in an injury to her person while she was a passenger on one of the defendant's trains.

There were three counts to the complaint. The first and third counts charged simple negligence. The second count charged wantonness on the part of the defendant's servants or agents.

There were four pleas to the complaint, which pleas were filed as answers to the complaint as a whole and to each count of the complaint separately. Plea 1 was the general issue. Plea 2 was a plea of contributory negligence.

Plea 3 set up that the injury of plaintiff was due to unavoidable accident, and of course, if that was true, that fact could have been shown under the general issue. If the injury was due to unavoidable accident, it was not, of course, due to the negligence of the defendant or of its servants or agents nor to the wantonness of the defendant's servants or agents.

Plea 4 was a plea setting up assumption of risk.

Pleas 2 and 4 were not answers to the wanton count and the court sustained the plaintiff's demurrer to those pleas as answers to that count. This, of course, was a judicial determination by the trial judge that those pleas were not answers to the complaint as a whole but only to the counts charging simple negligence.

1. The plaintiff contends that pleas 2 and 4 were subject to certain technical defects. We do not think that it is necessary for us to consider the questions thus sought to be raised for reasons which will plainly appear below.

2. When a plaintiff brings a suit and bases his right of recovery upon the negligence of another, he must show a state of facts from which the negligence charged in his complaint may be reasonably inferred. To use almost the very language of this court in American Cast Iron Pipe Co. v. John Landrum, 62 So. 757, and of the Supreme Court of the United States in Patton v. Texas Pacific Railroad Co., 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361, where the testimony leaves the matter so uncertain that any one of a half dozen things may have brought about the injury, for some of which the defendant might be responsible as for an act of negligence and for some of which he would not be so responsible, it is not for the jury to guess between these half dozen causes and find that the negligence of the defendant was the real cause "when there is no satisfactory foundation in the testimony for that conclusion." In such a case the plaintiff simply "fails in his testimony, and no mere sympathy for the unfortunate victims of an accident justifies any departure from settled rules of proof resting upon all plaintiffs."

It is undoubtedly true, as stated by the plaintiff's counsel in their brief, that the affirmative charge should not be given in favor of a defendant when the evidence in the case is such as to authorize a reasonable inference of the plaintiff's legal right to recover; but this well-settled rule in no way conflicts with the rule announced in the cases above cited.

It seems that the plaintiff was a passenger on one of the defendant's trains and in alighting she fell to the platform and received certain injuries. In her testimony she thus describes the incident: "I am the plaintiff in this case. I remember Sunday, the 29th of August, 1909, when I went over from Kellyton to Alexander City on the Central of Georgia passenger train with my husband. When we got to Alexander City on the Central of Georgia passenger train with my husband. When we got to Alexander City Mr. Carlisle left the train at Alexander City first and had the baby. I had a suit case, parasol, and fan, some in each hand. The conductor went off before I did. When I started to go down the step something caught my shoe heel and caused me to fall. I was on the step when I stepped off of the platform when this happened. I fell backwards. My feet hit the ground. I was lying on the steps. I don't know exactly when the heel got fastened, but something pulled it. I could not get it loose when I fell. I was trying to go on down the steps when the heel pulled off. I never paid any attention to the steps. The conductor was standing off a piece from the steps with his back to me. *** At the time my heel got caught my foot was on the first step after I left the platform. I received an injury; my ankle was sprained. The conductor asked me if I was hurt. I told him I didn't think I was. I didn't know at that time that I was hurt. I discovered that I was hurt just as I turned to walk off. At the time I told the conductor I didn't think I was hurt, I...