Louisville & N.R. Co. v. Clark

• Citation: 205 Ala. 152,87 So. 676
• Decision Date: 11 November 1920
• Docket Number: 8 Div. 275
• Court: Supreme Court of Alabama
• Parties: LOUISVILLE & N.R. CO. et al. v. CLARK.

87 So. 676

205 Ala. 152

LOUISVILLE & N.R. CO. et al. v. CLARK.

8 Div. 275

Supreme Court of Alabama

November 11, 1920

Rehearing Denied Dec. 28, 1920

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by Mrs. Ellen W. Clark against the Louisville & Nashville Railroad and others. Judgment for the plaintiff, and the defendants appeal. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Eyster & Eyster, of Albany, for appellants.

J.R Sample, of Hartsells, and Callahan & Harris, of Decatur, for appellee.

THOMAS J.

The case was tried on counts 2, 3, and 4 against defendants Louisville & Nashville Railroad Company, a corporation Southern Railway Company, a corporation, and Walker D. Hines as Director General of Railroads. The first, fifth, and sixth counts were eliminated by charges, as was also the Southern Railway Company as a party defendant.

Defendants made motion to strike parts of the several counts of the complaint; and though the ruling thereon is assigned as error, it is not shown by the bill of exceptions or the judgment entry that action of the court was invoked on this motion.

Demurrer is not the pleading to raise the question of recovery for an improper element of damages. This should be done by a motion, appropriate objections to the evidence, or by special instructions to the jury. W.U. Tel. Co. v. Garthright, 151 Ala. 413, 44 So. 212; W.U. Tel. Co. v. Burns, 164 Ala. 252, 51 So. 373; Fitzpatrick v. Age-Herald Pub. Co., 184 Ala. 510, 63 So. 980, 51 L.R.A. (N.S.) 401, Ann.Cas.1916B, 753. Under the instant pleading, the question of recoverable damage was expressly limited by the charge of the court to physical damages and in conformity to the rules obtaining in interstate commerce. W.U. Tel. Co. v. Beasley, 87 So. 858; W.U. Tel. Co. v. Hawkins, 198 Ala. 682, 73 So. 973; W.U. Tel. Co. v. Smith, 200 Ala. 65, 75 So. 393; Deavors v. Sou. Exp. Co., 200 Ala. 372, 76 So. 288.

Defendants pleaded not guilty and contributory negligence in that plaintiff failed to pay attention to the announcement of defendants' employees that the train was leaving Decatur for Hartsells, and failed to board defendants' train, although ample opportunity was given her for doing so. The carrier's duty, "stated with reference to the necessities of this case, is to put its passenger down safely and on time at the point of his contract destination. In the absence of special circumstances known to the carrier, it need not be concerned about the passenger's arrangements for the further prosecution of his journey." A railway journey being taken for some ulterior purpose, a traveler, sustaining damages because of circumstances peculiar to himself, can recover therefor only when "he has given the carrier notice of the facts" of such peculiar circumstances. C. of Ga. Ry. v. Barnitz, 198 Ala. 156, 73 So. 471; 3 Sutherland's Damages, §§ 938, 939.

The fourth count charges:

That defendants, as common carriers operating passenger trains for hire, on January 28, 1918, jointly maintained a union depot at Decatur, Ala., for use of their passengers, a ticket office, and a waiting room in which passengers are required to go in order to reach the ticket window of the office where tickets are sold for trains operated by said defendants; that they maintained bulletin boards showing the schedule time of arrival and departure of all passenger trains over their roads and upon which they posted the time of arrival of trains when late, and on said date defendants kept, "in a conspicuous place on the wall in said waiting room, a clock which was kept running, and was kept for the use of their passengers, that said passengers might keep themselves informed as to the correct time, and in order that said passengers might be informed as to when their trains would arrive and depart from said station."

It is further averred:

That about 2 o'clock a.m. on the morning of said date plaintiff and her son-in-law, R.L. White, reached said station over a train of the Southern Railway from Little Rock, Ark.; that they were accompanying the corpse of plaintiff's son, who had died, and she was returning to her home, carrying said corpse for burial; that "plaintiff and said corpse were being carried on tickets furnished by government authorities at Camp Pike, Little Rock, Ark., from that point by Memphis, Tenn., over the Southern Railway Company to Decatur, Ala., and from Decatur to Hartsells, Ala., over the Louisville & Nashville Railroad Company, and plaintiff's son-in-law, R.L. White, was riding on a ticket purchased by him from Little Rock, Ark., to Decatur, Ala.; that, when plaintiff reached Decatur, Ala., the said R.L. White purchased his ticket from Decatur to Hartsells, and he and plaintiff then informed said agent that plaintiff had a ticket for herself and for a corpse for Hartsells, and inquired of the ticket agent from whom said ticket was purchased as to the time when the first train would leave Decatur upon which plaintiff and said corpse could go to Hartsells, and said agent, whose name is unknown to plaintiff, informed plaintiff that the train known as the morning accommodation train from Decatur, Ala., to Birmingham, Ala., upon which she should ride, and upon which said corpse would be carried, would leave defendants' depot at Decatur at 6:30 a.m. of said date, to wit, January 28, 1918; that plaintiff continued to wait in the waiting room at said station or depot until 6:25 o'clock a.m., when plaintiff and her said son-in-law again inquired of said agent about said train, and whether or not it was on time; that said agent then and there told plaintiff that said train had left, and was then on its way to Hartsells, and that said corpse was on said train."

It is further averred:

That plaintiff was left in Decatur, and had no way or means of getting to Hartsells until the next train, about 3:30 o'clock p.m., reaching Hartsells about 4 o'clock p.m.; that said corpse reached Hartsells about 7 o'clock a.m., without any one accompanying it; that no arrangements had been made for any one to meet said train and take said corpse; that said corpse was unloaded on the trucks and permitted to remain thereon at the depot until late in the afternoon; that on account of plaintiff's missing said train at Decatur she did not leave Hartsells until about 4 o'clock p.m., "whereas, if she had not missed said train, she would have left with said corpse about 9 o'clock a.m.; that plaintiff's home was about 25 miles in the country east from Hartsells; that the weather was very cold and the roads very muddy; that soon after leaving Hartsells upon said journey home it began to rain, and continued to rain and sleet on plaintiff throughout the entire journey; that plaintiff did not reach home until about 2 o'clock a.m. on January 29, 1918; that said corpse did not reach home until about 4 o'clock a.m. on January 29, 1918."

It is further averred:

"That in going from Hartsells to her home, plaintiff was in the cold, rain, and sleet, traveling over muddy, rough roads, in the darkness, for 10 hours; that when she reached home she was almost frozen, and from said exposure she contracted grippe, and was confined to her room for months because thereof; that during all of the time while waiting at Decatur, and while on the road home, plaintiff knew that the corpse of her said son was being moved about unaccompanied, and was being hauled over muddy roads in the darkness of the night, so that plaintiff could not accompany the same, as was her desire; that because of the foregoing plaintiff suffered great mental and physical pain and anguish, was made sick and sore, and rendered unable to work."

It is further averred:

That when plaintiff was informed "by said agent that said train would leave the station at Decatur, Ala., at 6:30 a.m., she consulted said clock kept and maintained by the defendants in said waiting room, and continually watched said clock for the purpose of determining when she should take said train; that when said clock showed the hour to be 6:25 a.m. plaintiff again asked the agent about said train, and said agent then informed plaintiff that said

train had gone and was on its way to Hartsells; *** that defendants negligently kept and maintained said clock, which erroneously indicated the time when said train would leave said station, and as a proximate consequence of said negligence plaintiff missed said train, and suffered said injuries." Respective counsel suggest that the case made by the fourth count is sui generis, and that diligent search failed to reveal any "clock case" as made in said count. The theory of such a case is not without analogy in our decisions. The lower court properly held that defendants, as common carriers, were under no duty to furnish a clock in its waiting room for use of passengers, but, having undertaken to inform passengers the time by means of this clock, defendants were under the duty to exercise due care in that behalf. Such was the holding in Birmingham Southern Railroad v. Harrison, 203 Ala. 284, 82 So. 534, 543, a case of having installed and maintained mechanical signals at public road crossings, and educated or induced the traveling public to observe its warnings or directions. On failure of the device to act, in the absence of other sufficient notice or warning in lieu thereof, held, that the obligation to rebut the prima facie presumption of failure of the mechanical signal to act passed to the operator so using or giving warning by the signal. Vinson v. Sou. Bell Tel. Co., 188 Ala. 292, 66 So. 100, L.R.A.1915C, 450, the safety gate cases, maintaining a flagman, etc. On the authority of Birmingham

...