Central Railroad & Banking Co. v. Miles

• Decision Date: 07 November 1889
• Citation: 88 Ala. 256,6 So. 696
• Court: Alabama Supreme Court
• Parties: CENTRAL RAILROAD & BANKING CO. v. MILES.

6 So. 696

88 Ala. 256

CENTRAL RAILROAD & BANKING CO. v. MILES.

Supreme Court of Alabama

November 7, 1889

Appeal from circuit court, Bullock county; J. M. CARMICHAEL, Judge.

Norman & Son, for appellant.

Fleming Law and Tompkins & Troy, for appellee.

CLOPTON J.

Contributory negligence is relied on to defeat the action, which is brought by appellee to recover for injuries alleged to have been caused by the mismanagement of defendant's train, on which he was a passenger, while in the act of leaving the train. The charges given and refused raise the inquiry whether the attempt of plaintiff to step from a moving car under the circumstances disclosed by the evidence, was per se negligence.

Undoubtedly cases do arise in which the facts are so clearly established, and the inference as to the course dictated by ordinary prudence so certain and invariable, that it becomes the duty of the court to take the question from the jury. Banking Co. v. Letcher, 69 Ala. 106, is one of this class of cases. Plaintiff was not a passenger. The train was moving from a regular depot, on its accustomed journey, at the rate of five or six miles an hour. The persons in charge were ignorant that plaintiff was on the train. Without request or effort to arrest its progress, he walked out of the car on the platform, and to the rear platform of the next car; descended the steps, with his right hand filled with papers; and jumped off at a right angle,-a manner "almost certain to cause him to fall." It was held that, under these circumstances, the court should have instructed the jury plaintiff had no right of recovery. In Ricketts v. Railway Co., 85 Ala. 600, 5 South. Rep. 355, it is said: "Stepping from a moving car, without necessity, when injury is caused thereby, which could have been avoided by remaining on the car,-by the exercise of ordinary care,-is negligence which will defeat a recovery because of prior negligence of the agents or servants of the company." This general observation had reference to a charge which instructed the jury that plaintiff was not entitled to recover if he was standing on the steps in front of the car, with a keg of lead in his hands, and undertook to step off while it was in motion; and such act was not that of an ordinarily prudent man; and he would not have been injured if he had remained on the steps,-unless the injury was caused wantonly, recklessly, or intentionally. The question of negligence was submitted to the jury; whether or not properly, was not presented or considered. Still, the principle of the decision is that stepping from a moving car, under the circumstances hypothetically stated in the charge, is negligence. These cases, which are cited by counsel for appellant as supporting their contention, only declare the general proposition that alighting from a car in motion, when the danger is obvious, or without, not absolute, but reasonable, necessity, real or apparent, constitutes contributory negligence, and will defeat a recovery for injury caused thereby.

When the material facts are disputed, or, if clearly established, different inferences may be reasonably drawn therefrom, contributory negligence is a question of fact, exclusively within the province of the jury. This general rule is as applicable to the act of getting off a car in motion as to other cases, unless the court is prepared to lay down an inexorable rule that-except in the well-settled instance of leaping under the impulse of alarm, excited by sudden exposure to great peril-to alight from a moving car is negligence in law in all cases, and under any circumstances.

The undisputed facts are that plaintiff was a passenger, having purchased a ticket for transportation from Union Springs to Inverness; both being regular stations on defendant's road. When the train reached Inverness, it was stopped; and thereupon plaintiff promptly left his seat, and moved towards the front door of the car, for the purpose of getting off. The train was started before he reached and door, and was moving when he passed out on the platform; and, on being informed that it was not to stop-or not longer than it had stopped-by a porter, who was standing on the steps, plaintiff descended the steps, his left hand holding the side-rail, and stepped off, in the direction the train was moving.

He knew there was a bell-rope to signal the engineer to stop the train, but did not pull the rope, as the train was running so slowly he did not think there was any danger. The conductor knew that plaintiff was a passenger, and that Inverness was his point of destination. There is some variance in the evidence as to the length of time the train was...