Central of Georgia Ry. Co. v. Smith

• Court: Alabama Supreme Court
• Writing for the Court: BROWN, J.
• Citation: Central of Georgia Ry. Co. v. Smith, 217 Ala. 501, 117 So. 74 (Ala. 1928)
• Decision Date: 10 May 1928
• Docket Number: 6 Div. 992
• Parties: CENTRAL OF GEORGIA RY. CO. v. SMITH.

117 So. 74

217 Ala. 501

CENTRAL OF GEORGIA RY. CO. v. SMITH.

6 Div. 992

Supreme Court of Alabama

May 10, 1928

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by Nettie D. Smith against the Central of Georgia Railway Company, for damages for negligently carrying plaintiff, as a passenger, beyond her destination. From a judgment for plaintiff for $1,250, defendant appeals. Affirmed conditionally.

Carrier was liable if conductor promised to wake passenger, exhausted because trains were late, and failed.

The charges refused to defendant, and made the basis of assignments 5, 6, 10, and 11, are as follows:

"If you are reasonably satisfied from the evidence that the conductor promised to awaken the plaintiff at Birmingham I charge you that such promise is not binding upon this defendant."

"The defendant was not under any duty, in this case, to awaken the plaintiff when the train arrived at Birmingham, if you are reasonably satisfied that reasonable and proper notice of the station was given."

"If you are reasonably satisfied from the evidence that the plaintiff's destination was called in the coach where she was and called in a reasonable and customary manner and time, and that reasonable opportunity was given for passengers to alight, you must find for the defendant."

"If you believe the evidence, the defendant's conductor had no authority to bind the defendant by any promise to awaken the plaintiff at Birmingham." Plaintiff, as a witness, testified that she told the conductor she had not slept for hours and was in a perfectly exhausted condition and did not know what might happen to her, that she might fall asleep or faint, and that the conductor "said he would look out after me (her)." Defendant moved to exclude the quoted statement, and the overruling of this motion is made the basis of assignment 12.

Nesbit & Sadler, of Birmingham, for appellant.

Black & Fort and G. Ernest Jones, all of Birmingham, for appellee.

BROWN J.

The carrier's duty, as a general rule, is fully discharged when it carries the passenger safely to the contract destination on time, and, after, giving reasonable notice that it has reached such destination, stops at the fixed place for passengers to disembark and remains standing a sufficient length of time for them to safely alight. Central of Ga. Ry. Co. v. Barnitz, 198 Ala. 156, 73 So. 471; Smith v. Ga. Pac. Ry. Co., 88 Ala. 538, 7 So. 119, 7 L.R.A. 323, 16 Am.St.Rep. 63; Richmond & Danville R.R. Co. v. Smith, 92 Ala. 237, 9 So. 223; Ala. City G. & A. Ry. Co. v. Cox, 173 Ala. 629, 55 So. 909; Southern Ry. Co. v. Herron, 12 Ala.App. 415, 68 So. 551; 2 Hutch. on Carriers, § 1121.

The general consensus of judicial opinion seems to be that, if the carrier announces the arrival of the train at each station or fixed place provided for passengers to leave the train, in a distinct and audible manner in each car, so that it may be heard by all passengers alert to the duty imposed upon them, and stops a sufficient length of time to allow passengers exercising reasonable care for their own safety to get off, without danger or injury to their person, this meets its full duty in respect to giving reasonable notice. Central of Georgia Ry. Co. v. Crane, 189 Ala. 538, 66 So. 604; 2 Hutch. on Carriers, § 1121.

And while, as a general rule, the carrier is under no duty to give a passenger personal notice that their particular station has been reached, and a promise by the conductor of the train to notify a passenger personally of the arrival of the train is not binding on the carrier, yet exceptional circumstances in respect to the age, sex, or physical infirmity of the passenger, and notice of such condition brought home to the agent in charge of the carrier's vehicle, may impose this duty and bring it within the scope of the carrier's duty. 2 Hutch. on Carriers, § 1121; 4 R.C.L. 1086, § 537; Hanson v. Chicago, R.I. & P.R.R. Co., 83 Kan. 553, 112 P. 152; 31 L.R.A. (N.S.) 624; Texas Mid. R. Co. v. Terry, 27 Tex.Civ.App. 341, 65 S.W. 697; Weightman v. Louisville, N.O. & Tex.R. Co., 70 Miss. 563, 12 So. 586, 19 L.R.A. 671, 35 Am.St.Rep. 660; Gilkerson v. Atlantic C.L.R. Co., 99 S.C. 426, 83 S.E. 592, L.R.A.1915C, 664, Ann.Cas.1916B, 248.

Appellee's contention on the trial was that the facts of the case, if the plaintiff's testimony was believed, bring it within the exception to the general rule, above stated, that the circumstances surrounding the parties, from this point of view, imposed on the carrier the duty to give plaintiff personal notice. The court so ruled and submitted the case to the jury.

On the other hand, the appellant's contention was, conceding that the conductor promised to give the plaintiff personal notice of the arrival of the train at her destination, it was a mere personal obligation of the conductor, not within the scope of his authority as an agent of the defendant, and that its breach imposed no liability on the defendant. In line with this contention defendant made objections to the plaintiff's evidence tending to show such promise was made, accompanied by motion to exclude, and requested appropriate special instructions to the jury asserting this theory. The objections to the evidence and motion to exclude were overruled and the instructions refused, and these rulings are made the basis of the several assignments of error argued.

The question has been presented and treated in other jurisdictions, and the decisions in line with appellant's contention are Nunn v. Ga. R.R. Co., 71 Ga. 710, 51 Am.Rep. 284; Sevier v. Vicksburg R.R. Co., 61 Miss. 8, 48 Am.Rep. 74; M., K. & T. Ry. Co. v. Kendrick (Tex.Civ.App.) 32 S.W. 42; Tex. & Pac. Ry. Co. v. Alexander (Tex.Civ.App.) 30 S.W. 1113, and probably others.

In other jurisdictions the courts have taken a different view. Nelson, Adm'r, v. Chicago Northwestern R. Co., 130 Wis. 214, 109 N.W. 933; Gilkerson v. A.C.L.R.R. Co., 99 S.C. 426, 83 S.E. 592, L.R.A.1915C, 664, Ann.Cas.1916B, 248; Chicago, R.I. & T.R. Co. v. Bayles, 11 Tex.Civ.App. 522, 33 S.W. 247; Bass v. Cleveland, C.C. & St. L.R. Co., 142 Mich. 177, 105 N.W. 151, 2 L.R.A. (N.S.) 875, 7 Ann.Cas. 718.

In Louisville & Nashville R.R. Co. v. Quick, 125 Ala. 564, 28 So. 14, this court approved instructions to the jury to the effect that the passenger, an old and infirm woman, had the right to rely upon the promise of the conductor to give her personal notice of the arrival of the train at her destination, and that if the trainman failed to give such notice, the defendant was liable.

We notice especially the cases urged by appellant to sustain its contention. In Nunn v. Georgia R.R. Co., supra, the passenger was a commuter, holding a season ticket on which he made daily trips to and from his home to his work; and, to state the case in the language of the opinion in that case:

"This was a drowsy man, traveling a distance of ten miles; he made no contract with the company to have him aroused, in case he should be asleep when he reached his destination; he relied upon the courtesy of the conductor to do him this kind office, as it seems he had on previous occasions done for him, and perhaps for some others."

The court, in concluding the opinion, observed:

"How far a custom upon the part of conductors, known, or which may be presumed to be known to the company, to assist unattended females, or children, or infirm persons, will modify these rules, we do not now decide."

In M K. & T. Ry. Co. v. Kendrick, supra, the appellee's wife purchased a ticket at Gainsville, Tex., entitling her to be carried to Emory, and became a passenger on a train necessitating a change of cars at Whitesboro. "After the train left Gainsville, the conductor promised appellee's wife, who had lost much sleep with a sick child, that, if she went to sleep, he would awake her at Whitesboro, where it was necessary for her to change cars; that said conductor neglected to awake her, and, in consequence of such neglect, she and her children were carried by Whitesboro, and, against her protest, put off at Collinsville, where she was neglected and badly treated by appellant's local agent and a crowd of men and boys at the depot; that she remained at Collinsville several hours, and took a north-bound train for Denison, where she arrived at about 6 o'clock, and was compelled to spend the night, and did not reach her destination until the next day." Liability in that case was denied on the ground...