Central of Georgia Ry. Co. v. Bagley

• Decision Date: 09 May 1911
• Parties: CENTRAL OF GEORGIA RY. CO. v. BAGLEY.
• Court: Alabama Supreme Court

55 So. 894

173 Ala. 611

CENTRAL OF GEORGIA RY. CO. v. BAGLEY.

Supreme Court of Alabama

May 9, 1911

Rehearing Denied June 27, 1911.

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by Mrs. W. W. Bagley against the Central of Georgia Railway Company for injury to her as a passenger. From a judgment for plaintiff, defendant appeals. Affirmed.

The second count is as follows: "The plaintiff claims of defendant the further sum of $10,000 as damages, for that heretofore, to wit, on the 28th day of December, 1904 defendant was a common carrier of passengers from Woodlawn Junction, in Jefferson county, Alabama, to Columbus, Georgia by means of a train upon a railway; that on said day plaintiff boarded said train at said Woodlawn Junction with a ticket which plaintiff had purchased from defendant purporting to be a ticket for one passage to said Columbus Georgia, and plaintiff in good faith believed that said ticket entitled her to be carried by the defendant as its passenger from said Woodlawn Junction to said Columbus, and in good faith plaintiff boarded said train at said Woodlawn Junction to be carried by the defendant on said train as its passenger, and in good faith plaintiff tendered said ticket to defendant's conductor on said train as evidence of her right, as she believed, to ride thereon; that notwithstanding said tender, said conductor required plaintiff to leave train at a point at or near said Woodlawn Junction, which point was in Jefferson county, Alabama, and a long distance short of her said destination, to wit, said Columbus; that in or about requiring plaintiff to leave said train defendant's conductor negligently caused plaintiff, who was an old and infirm woman, to leave said train when the steps over which plaintiff was required to leave said train as aforesaid were a great distance from the ground, and by reason thereof it was highly dangerous to plaintiff to so leave said train at said point, and in or about attempting to leave said train at said point in obedience to said requirement of said conductor plaintiff slipped or fell, and her hip, knee, and shoulder were sprained, wrenched, broken, and otherwise injured, she was crippled and disfigured, suffered great mental and physical pain, her health and physical stamina were greatly and permanently impaired, she is likely for a long time to continue to suffer great mental and physical pain and to be crippled and disfigured, and she was put to great trouble, inconvenience, and expense for medicine, medical attention, care, and nursing in or about her effort to heal and cure her said wounds and injuries."

The demurrers are that the duty of defendant to carry plaintiff is a mere conclusion of the pleader, and no facts are shown making it the duty of the defendant to carry plaintiff as a passenger upon said train; that the wrongful ejection of plaintiff from said train is not shown to have proximately caused the injury. It is not alleged or shown that plaintiff, when she boarded said train, had any ticket which entitled her to be carried on said train; that the good faith of plaintiff in believing that she was entitled to be carried on said train would not constitute plaintiff a passenger thereon; that it is not alleged or shown how or in what manner the conductor was negligent in causing the plaintiff to do so. The complaint was afterwards amended by striking out the words "as defendant's passenger" where they first occur together in count 2.

The defense was contributory negligence in getting off on the side which she did, when by getting off on the other side, which was entirely safe and practicable for her to do, she would have gotten off upon the safe side. The other pleas set up the same facts in different ways, coupled with the allegation that she was incumbered with a heavy suit case.

The questions put to Moncrief, to which objection was sustained, are as follows: "Didn't you swear before, on the other trial, that Coyle weighed 160 pounds?" and "Will you tell the jury whether or not there was anything peculiar about his face when he left home that morning?" The question as to expert testimony to the witness Moncrief was as follows: "I will ask you as an expert whether there is any reason why a person, an ordinary person, not incumbered with any luggage at all, could not safely get off the train at that point?"

The following written charges were refused to the defendant: (20) "I charge you that, if you believe the evidence, the defendant's conductor was under no obligation or duty to assist the plaintiff in alighting from the train." (21) "I charge you that it is not the duty of the conductor to assist the plaintiff in carrying her baggage out of the car." (22) "I charge you that the fact that the plaintiff had with her a suit case would not impose upon the conductor any greater duty to assist her in leaving the train than if she did not have any baggage." (26) "I charge you that you cannot find that the plaintiff was old and infirm, merely because she was 56 or 57 years old." (27) "I charge you that, if you believe the evidence you cannot find that the conductor knew that the plaintiff was old and infirm." (28) "I charge you that there is no evidence that the conductor knew that the plaintiff was old and infirm." (12) "I charge you that, if you are not reasonably satisfied from the evidence that the conductor knew of the infirmity of the plaintiff and the peril attending her leaving the train at that time and place, the defendant would not be liable for any injuries she may have sustained in alighting from the train." (14) "I charge you that, if you believe from the evidence that the plaintiff was not a passenger on defendant's train on the 28th day of December, 1904, the conductor in charge of the train had a right to notify plaintiff to leave said train at said time and place, and the defendant is not liable for injury the plaintiff may have sustained, unless the conductor knew or ought to have known that for the plaintiff to get off the train at that time and place would be attended with danger to the plaintiff." (16) "I charge you that, under the undisputed evidence in this case, defendant's conductor had the right to require plaintiff to leave its train, and unless the jury is reasonably satisfied from the evidence that the conductor knew that the place where plaintiff alighted was dangerous or likely to injure plaintiff, then the plaintiff cannot recover." (17) "I charge you that the burden is upon the plaintiff to reasonably satisfy the jury by the evidence that the servants of the defendant knew that the place where the plaintiff alighted was dangerous or likely to produce injury." (19) "I charge you that the relation of passenger and carrier did not exist between the plaintiff and defendant on the morning of the 28th of December, 1904, at the time of the alleged injury, and that the defendant owed the plaintiff no duty as a passenger, and cannot be held liable for any injury she may have received in alighting from the train, unless the servants of the defendant intentionally caused or required the plaintiff to leave said train with...