Central of Georgia Ry. Co. v. Hingson

• Citation: 186 Ala. 40,65 So. 45
• Decision Date: 14 April 1914
• Docket Number: 802
• Parties: CENTRAL OF GEORGIA RY. CO. v. HINGSON.
• Court: Supreme Court of Alabama

65 So. 45

186 Ala. 40

CENTRAL OF GEORGIA RY. CO. v. HINGSON.

No. 802

Supreme Court of Alabama

April 14, 1914

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Action by J.H. Hingson against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint, after stating the relation as that of passenger and carrier, avers that plaintiff was swinging to the side of one of the passenger cars of said train, trying to board the same from where plaintiff had stepped off the ground when the train stopped; and plaintiff avers that the agents or servants in charge or control of said train of the defendant and acting within the line and scope of their authority as such agent or servant, wantonly, willfully or intentionally caused or allowed said train to move along by a platform adjacent to the depot of plaintiff at Jackson's Gap, and wantonly, willfully or intentionally caused or allowed plaintiff, while thus swinging on the side of the train to be caught between said moving train and said platform, and, as a proximate consequence, plaintiff was injured as described.

The third count states the same relationship; and that plaintiff was swinging to and trying to board one of the passenger cars in said train; and that the place where plaintiff was swinging was rapidly approaching the platform adjacent to said depot at Jackson's Gap; and said train passed very close to said platform, and plaintiff was in great danger of being caught between said moving train and said platform; and one or more of the servants or agents of defendant in the control of said train, and acting within the line and scope of their authority as such agents or servants of defendant discovered plaintiff's position of peril in time to have prevented injury to plaintiff, by the use of all the preventive means at his or her command; but, notwithstanding the discovery of plaintiff's peril, such agents or servants thereafter negligently caused or allowed plaintiff to be caught between said moving train and said platform whereby plaintiff sustained the injuries complained of and alleged.

Amended plea 5 is as follows: "Plaintiff should not recover in this cause, because, when the train on which plaintiff was riding was approaching Jackson's Gap, an intermediate station on defendant's railroad between Kellyton and Waverly, the plaintiff was notified by the conductor on said train that he would not have time to mail a letter on No. 1 at Jackson's Gap (No. 1 being the train which passed the train on which plaintiff was a passenger at Jackson's Gap). That, when the train on which plaintiff was riding as a passenger stopped at Jackson's Gap, plaintiff left the train on which he was riding and alighted on the ground, and attempted to mail a letter on train No. 1, and, before the plaintiff had returned, the conductor in charge of the train on which plaintiff was riding as a passenger called, 'All aboard,' and the train started, and plaintiff, while said train was in motion, negligently attempted to board the same and, in attempting to board such train, negligently grabbed to the handrail of the step leading to the vestibule of the sleeping car, holding onto same. At the time plaintiff grabbed and held on to the handrail of said steps, the train was moving at the rate of not less than three or four miles an hour, and was approaching the platform. That plaintiff held onto said rail until he was caught between the defendant's train and the platform. That before plaintiff reached and came in contact with the platform, he was warned of his danger and was told to turn loose, and that, after said warning, plaintiff held to said handrail until he was caught between defendant's train and the platform sustaining the alleged injuries, and thereby caused or proximately contributed to the injuries complained of."

The demurrers assigned are as follows: "(16) It is not shown or averred in said plea that plaintiff could have turned loose from where he was holding with safety to himself. (17) For aught that appears, it would have been more dangerous for plaintiff to have turned loose from where he was holding than not to have done so."

The following charge was refused to defendant: "(2) When a passenger boards a railway train and pays fare to be transported from one station to another, his contract does not obligate the corporation to furnish him safe egress and ingress at an intermediate station, or while the train was side-tracked, and while the train was stopped at such place the duty and safety of a passenger both concur in telling him to remain in the car. If, under such circumstances, he leaves the cars with the knowledge or consent of the corporation for the time being he surrenders his rights as a passenger,...