Henderson v. Southern Ry. Co.
| Decision Date | 29 June 1939 |
| Docket Number | 8 Div. 960. |
| Citation | 238 Ala. 356,191 So. 234 |
| Parties | HENDERSON v. SOUTHERN RY. CO. |
| Court | Alabama Supreme Court |
Rehearing Denied Oct. 12, 1939.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Action for damages by Sarah A. Henderson against the Southern Railway Company for injuries sustained by plaintiff while she was a passenger on defendant's train. From a judgment for defendant, plaintiff appeals.
Affirmed.
E. W Godbey, of Decatur, for appellant.
Russell W. Lynne and S. A. Lynne, both of Decatur, for appellee.
Plaintiff was a passenger on defendant's train en route from Asheville, North Carolina, to Decatur, Alabama, and at Chattanooga, Tennessee, was directed by defendant's employee to change to the coach ahead, which she did following the flagman out of the coach. She insists that as she passed through the door, "it slammed and hit me on the arm," causing the injuries for which she sues.
Plaintiff's case in counts 2 and 3 rests upon negligence of the employees in charge of the train, the latter count designating the conductor; while count 4 rests upon a defect in the mechanism of the door, which arose or had not been discovered or remedied owing to the negligence of defendant's agent servants or employees.
Upon submission of the case to the jury on these counts, and on plea of the general issue and contributory negligence, interposed for defendant, there was verdict for defendant, and plaintiff appeals.
The insistence here for reversal is rested upon the action of the court in giving for defendant charges 6, 20 and 18. Plaintiff cites many authorities (Bloom v. City of Cullman, 197 Ala. 490, 73 So. 85; Town of Athens v. Miller, 190 Ala. 82, 66 So. 702; Baker v. Baker, 220 Ala. 201, 124 So. 740; Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287; Alabama City, Gadsden & Attalla Ry. Co. v. Appleton, 171 Ala. 324, 54 So. 638, Ann.Cas.1913A, 1181; Alabama Power Co. v. Davidson,
206 Ala. 501, 90 So. 915; Craft v. Boston E. R. Co., 211 Mass. 374, 97 N.E. 610, 39 L.R.A., N.S., 878; Missouri, K. & T. Rwy. Co. v. Perry, Tex.Civ.App., 95 S.W. 42; Anderson v. Kansas City Rwy. Co., 290 Mo. 1, 233 S.W. 203; Silva v. Boston & Maine Rwy., 204 Mass. 63, 90 N.E. 547; Martin v. Mo. Pac. R. Co., Mo.App., 253 S.W. 1083; Peterson v. De Luxe Cab Co., Iowa, 281 N.W. 737; Texas & Pacific Rwy. Co. v. Leakey, 39 Tex.Civ.App. 584, 87 S.W. 1168, 1169) upon the doctrine of res ipsa loquitur, and that a jury case was presented as to count 4; and other authorities ( Blackwood v. Rutherford, 212 Ala. 630, 103 So. 689; Sloss-Sheffield Steel & Iron Co. v. Smith, Ala.Sup., 40 So. 91; Woodward Iron Co. v. Brown, 167 Ala. 316, 52 So. 829; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23) to the effect that a charge predicating a finding for defendant, and which ignores other counts upon which plaintiff likewise seeks recovery, is faulty and should be refused.
Charges 6 and 20 are argued jointly, and so considered here. That they stipulate the proper degree of care owing by defendant to its passengers appears not to be questioned. It was stated in Birmingham Ry., Lt. & Power Co. v. Barrett, 179 Ala. 274, 60 So. 262, and reapproved in H. D. Pollard, Receiver, v. Bettie G. Williams, Ala.Sup., 191 So. 225, which latter case also restates our doctrine of res ipsa loquitur. But we see no occasion for a discussion of these principles here.
For the purpose of this case it may be assumed that a jury case was presented under count 4 (a question, we may add, not entirely free from difficulty), yet we cannot agree that these charges are faulty to the point of reversal as ignoring said count.
As to charge 6, it makes special reference to "any issue of negligence on the part of defendant's servants and employees submitted to you in this case," and one of the issues so submitted bore relation to negligence as to the defective condition of the door as set out in count 4.
Plaintiff argues upon the assumption that the use of the words "on the occasion in question" confined any matter of negligence to the conduct of those employees then in operation of the train. But this is too narrow a construction of the language of the charge. Plaintiff claimed damages for what occurred on this "occasion," and none other and if defendant met all the requirements of the law in the carriage of plaintiff as a passenger "on this occasion," it discharged its duty. Among the definitions of "occasion", as a noun, are necessity or need, also a particular time. 46 Corpus Juris 892. Here it would seem to have reference to the particular time of which plaintiff complains, and the duty on defendant as to the matter alleged in count 4 was a continuing one, and ever present "on this occasion." If at that time there was no defect in the mechanism, or, if so, defendant's employees had not been negligent in failing to discover or remedy such defect, it was a matter embraced within the...
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