Hill v. Birmingham Union Ry. Co.

• Decision Date: 01 December 1893
• Citation: 14 So. 201,100 Ala. 447
• Parties: HILL v. BIRMINGHAM UNION RY. CO.
• Court: Alabama Supreme Court

14 So. 201

100 Ala. 447

HILL v. BIRMINGHAM UNION RY. CO.

Supreme Court of Alabama

December 1, 1893

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action for personal injuries by John P. Hill against the Birmingham Union Railway Company. From a judgment for defendant directed by the court, plaintiff appeals. Affirmed.

Upon the examination of the plaintiff as a witness, he was asked the following question: "Whether or not he knew it was customary for passengers to pass from one car to another while the train was in motion." The defendant objected to this question, the court sustained the objection, and the plaintiff duly excepted. After stating that he had been passing over said road constantly for two or three years, the plaintiff was asked the following question: "Did not persons or passengers usually pass from one of said cars to another while the said train was in motion, stepping from the footboard to the steps of the adjoining cars?" The court sustained the defendant's objection to this question and the plaintiff duly excepted. Upon the examination of one W L. Timberlake, superintendent of the defendant's road, he testified that the rules of the company were in writing posted inside the car, and was then asked the following question: "Whether or not the rules of said company prohibited passengers from standing on the running boards and also if passengers were prohibited by said rules from passing from one car to another, in the manner described in the testimony of the plaintiff, while the train was in motion." The plaintiff objected to this question on the ground that, if said rules were in writing, the best evidence was the rules themselves. The court overruled his objection, and the plaintiff duly excepted to the witness testifying if there were such rules. On cross-examination, the said Timberlake was asked "if it was not usually customary for persons or passengers to pass from one car to another by way of the footboards to the steps of said car." The defendant objected to this question, which objection was sustained by the court, and the plaintiff duly excepted. Upon the introduction of all the evidence, the court, at the request of the defendant, gave the general affirmative charge in its behalf.

Bush & Brown, for appellant.

Hewitt, Walker & Porter, for appellee

McCLELLAN J.

The inquiry of contributory negligence vel non was, in the first instance, gone into by the plaintiff, and evidence was also adduced upon it by the defendant, without objection. That issue was treated by both parties, throughout the trial, as being in the case; and, on the theory that the undisputed testimony showed contributory negligence, the court gave the affirmative charge, with hypothesis, for the defendant. On this state of the record, we shall treat that issue as having been presented and litigated on the trial, though no plea of contributory negligence was interposed. Railroad Co. v Farmer, (Ala.) 12 So. 86. The plaintiff attempted to step from the footboard, running along the side of an open dummy-line car, to the steps leading down from the platform of a close car, while the train of which the cars constituted a part was in motion. The distance between the running board and the step was variable from two and a half to three and a...