Louisville & N.R. Co. v. Bowen

• Decision Date: 26 March 1925
• Docket Number: 6 Div. 269
• Citation: 212 Ala. 690,103 So. 872
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N.R. CO. v. BOWEN.

103 So. 872

212 Ala. 690

LOUISVILLE & N.R. CO. v. BOWEN.

6 Div. 269

Supreme Court of Alabama

March 26, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by T.J. Bowen against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McClellan Rice & Stone, and J.K. Jackson, all of Birmingham, for appellant.

London Yancey & Brower, and Clara Cain, all of Birmingham, for appellee.

GARDNER J.

Appellee recovered a judgment for injuries received on one of appellant's trains conveying United States mail, while engaged in his duties as a postal clerk thereon. The relation between the plaintiff and defendant was that of carrier and passenger, and it is not questioned that the defendant owed to the plaintiff the same degree of care as was due its passengers. Southern Ry. Co. v. Harrington, 166 Ala 630, 52 So. 57, 139 Am.St.Rep. 59; 6 Cyc. 542.

There were several exceptions reserved by the defendant to separate portions of the oral charge of the court, and the assignments of error based thereon constitute the question of prime importance on this appeal. The portions of the oral charge to which these exceptions were reserved appear in the fifth, eighth, tenth, eleventh, and twelfth assignments of error, and these assignments appear in the report of the case. The point is taken against these instructions that they require of defendant the duty of exercising the highest degree of skill and diligence in conserving plaintiff's safety, without any qualifying language to the effect that such skill and diligence suffices if it is of that degree known to careful, diligent, and skillful persons engaged in such business. An instruction of like character was considered and condemned in Birmingham Ry., L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, where many of our cases are reviewed. The charge there condemned was as follows: "It is the duty of a street car company to exercise the highest degree of care known to human skill and foresight in regard to the carriage of its passengers, and the carrier is liable for the slightest degree of negligence."

After reviewing a number of our decisions, the court said:

"The 'highest degree' of care, skill, and diligence is a relative term, and means the highest degree required by the law in any case where human safety is at stake, and the highest degree known to the usage and practice of very careful, skillful, and diligent persons engaged in the business of carrying passengers by similar means and agencies. *** It does not mean that every possible

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