Louisville & N.R. Co. v. Mulder

• Decision Date: 22 November 1906
• Parties: LOUISVILLE & N. R. CO. v. MULDER.
• Court: Alabama Supreme Court

42 So. 742

149 Ala. 676

LOUISVILLE & N. R. CO. v. MULDER.

Supreme Court of Alabama

November 22, 1906

Appeal from Circuit Court, Elmore County; S. L. Brewer, Judge.

"Not officially reported."

Action by A. M. Mulder against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action for damages alleged to have been done to a passenger in closing the door of the car upon his hand and injuring his fingers. The complaint contained eight counts all in simple negligence, except the fifth, which is for wanton or reckless injury. The negligence laid to the conductor is in negligently closing the door, except in the eighth count, where the negligence is alleged to consist in the fact that the person in charge of the train was required to act both in the capacity of engineer of the locomotive and conductor, and that his duties were such that he could not attend to both without the neglect of one, and that the injury was the proximate result of this person's double duty. The defense interposed was contributory negligence, in that he stood on the platform of one of the cars, with his back against the end of the car and his fingers in the jamb of the door, and in that he negligently stood upon the platform in violation of the rules of defendant forbidding passengers or persons from riding on the platform. The evidence tended to show that plaintiff was a passenger on defendant's train, and while such passenger his hand was injured by the door being shut upon it. The evidence was in conflict as to whether or not he was standing on the platform riding, or whether he was attempting to go into the car to be seated, when he was stopped by the conductor, who requested his ticket, and who shut the door upon plaintiff's hand as he was endeavoring to pass him going into the car.

The defendant requested the general affirmative charge and the following written charges, which were refused by the court Charge 2: "The court charges the jury that there is no evidence that the fact that Jenkins occupied the position of both engineer and conductor had any causal connection with the injury complained of." Charge 3: "The court charges the jury that it was not negligence in Jenkins to close the door of the coach at the time shown by the testimony." Charge 10: "The court charges the jury that there is no evidence that it was necessary for the plaintiff to take the position he did, even if he desired to let the conductor pass." Charge 11: "The court charges the jury that, as shown by the evidence in this case there was a safe place in which plaintiff could have stepped even if he desired to let the conductor pass; and, if he inadvertently chose that which brought him in contact with the door, he is guilty of contributing to his own injury, and cannot recover." Charge 12 1/2: "If the jury believe from the evidence that the plaintiff inadvertently dropped his hand in the jamb of the door and was injured thereby, then the plaintiff was guilty of contributory negligence, and cannot recover."

There was verdict and judgment for plaintiff in the sum of $150. The defendant thereupon filed a motion for new trial: (1) Because the verdict of the jury is contrary to the evidence; (2) because the court erred in charging the jury that plaintiff was entitled to recover for mental pain and anguish, if at all, and there was no proof for such damages; (3) the court erred in not charging the jury in writing that plaintiff was guilty of contributory negligence directly and proximately causing the injury complained of; and (4) because the court erred in not giving the defendant the affirmative charge as requested in writing. This motion was overruled.

George W. Jones, H. L. Golson, and S. Lamar Fields, for appellant.

Lull & Tate, for appellee.

SIMPSON J.

This was an action for damages on account of an injury to the hand of...