Louisville & N.R. Co. v. Dilburn

• Citation: 178 Ala. 600,59 So. 438
• Parties: LOUISVILLE & N. R. CO. v. DILBURN.
• Decision Date: 16 April 1912
• Court: Alabama Supreme Court

59 So. 438

178 Ala. 600

LOUISVILLE & N. R. CO. v. DILBURN.

Supreme Court of Alabama

April 16, 1912

Rehearing Denied June 29, 1912.

Appeal from Circuit Court, Escambia County; J. C. Richardson, Judge.

Action by J. S. Dilburn, as administrator, against the Louisville &amp Nashville Railroad Company for the death of his intestate while a passenger. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The facts sufficiently appear from the opinion of the court.

The following charges were given for the plaintiff: (1) "The court charges the jury that a common carrier of passengers owes to its passengers the duty to exercise the highest degree of care, skill, and diligence, known to very careful skillful, and diligent persons engaged in like business." (2) "The court charges the jury that the law requires the highest degree of care, diligence, and skill by those engaged in the carriage of passengers by railroads known to careful, diligent, and skillful persons engaged in such business, and if you are reasonably satisfied from the evidence in this case that the deceased, Dr. Dilburn, was a passenger on defendant's train, and while such a passenger lost his life as a direct and proximate consequence of the defendant's failure to exercise the care and diligence required by law, you must find for the plaintiff unless you are further reasonably satisfied from the evidence that Dr. Dilburn was also guilty of negligence which contributed proximately to his death, and the burden of proof of such contributory negligence is upon the defendant." (4) "Even though you may believe from the evidence in this case that Dr. Dilburn undertook to alight from the train while it was in motion, such conduct would not constitute contributory negligence, unless you are reasonably satisfied from the evidence that the risk taken by Dr. Dilburn in so attempting to alight was such risk as a man of ordinary care and prudence would not have undertaken under the circumstances."

Charge 11 refused to the defendant is as follows: "The court charges the jury that if they believe from the evidence that plaintiff's intestate, Dr. Dilburn, voluntarily stepped off the car while it was in motion, and against the earnest protest of the defendant's servant who was the flagman of said train, and was acting within the scope of his employment, and who offered to have the train stopped to let him get off, and notwithstanding this he stepped off of said car, he then assumed all the risk of alighting safely, and plaintiff cannot recover."

Rabb & Page, of Brewton, for appellant.

Stalling & Drennen, of Birmingham, and Leigh & Leigh, of Brewton, for appellee.

MAYFIELD J.

Plaintiff's intestate was a passenger on defendant's train from Flomaton to Wallace, and was killed while alighting from the train, at his destination, by falling or being thrown under the train, which ran over or against him.

Intestate was aged, being between 65 and 75 years old, was lame, disabled in one of his arms or shoulders, from a wound received in the war between the States, and from some cause was also lame in one of his legs, and was therefore in a much enfeebled condition. He was at the time also incumbered with bundles or packages, consisting of two quarts of whisky, bananas, etc., which he carried in a sack or sacks. There was, moreover, some question as to whether or not he was under the influence of intoxicants at the time of his death.

The issues raised and attempted to be raised by the pleadings were: First, wanton negligence or willful injury on the part of the defendant's agents; but, as was said in the opinion in this case on a former appeal, there was no evidence tending to support this theory, and it is not insisted upon, and it need not be considered. Second, simple negligence, on the part of the defendant's agents, in not stopping the train at Wallace a sufficient length of time for plaintiff's intestate to safely alight therefrom, and again in starting the train with a jerk or lurch in such manner as to throw plaintiff's intestate from the train or cause him to fall therefrom in his attempt to alight. Third, the contributory negligence of intestate in failing to safely leave, or alight from, the train at his destination, within a reasonable time after it was brought to a stop for that purpose, and after he was aware that a stop had been made for that purpose; and also in alighting from the train. when the same was in motion, while in his enfeebled condition, and while incumbered with bundles, and against the earnest protest of defendant's flagman, and notwithstanding the flagman's assurance that the train would be stopped so that he could alight in safety--by which action of intestate, after such warning, assurance, and protest, he was killed as the proximate result of his own negligence.

These issues were found in favor of plaintiff, verdict and judgment being rendered in his favor for $2,000; and from such judgment this appeal is prosecuted.

Many of the questions raised on this appeal were passed upon on the former appeal; and such rulings on the former appeal we decline to here reconsider, being satisfied of their correctness.

The first error insisted upon was the sustaining of the demurrer to plea No. 2. There appear of record two pleas numbered "2," and we are unable to know as to which the demurrer was sustained, or as to which the error is assigned; but the question is immaterial, because if there was error as to either it was without possible injury, for the reason that there were other pleas upon which the case was tried, which raised the identical issues attempted to be raised by both of these pleas. The same evidence was admissible, with these pleas out, that would have been admissible, with them in. They did not attempt to raise any issue different from those raised by a number of other pleas as to which the demurrer was overruled.

There is nothing in either the second or the third assignment, as to objections to evidence descriptive of the place of the injury; and, besides, no objections were interposed to the questions, but only to answers which were responsive to the questions asked.

As was ruled on the former appeal, it was competent to describe the surroundings at the place of the injury, and the intestate's familiarity, or lack of familiarity and acquaintance therewith.

The trial court properly excluded the answer of the witness, McDavid, as to the time when he first paid attention to the length of time the train stopped. The witness had stated that he "reckoned" it was half an hour; but, even if error, the witness was subsequently allowed to testify fully as to the matter inquired of.

There was, of course, no error in declining to exclude all the testimony of the witness McDavid with respect to the length of time the train was stopped. Some of this evidence was brought out by the appellant, and, of course, he could ask to have that excluded.

Moreover, his best judgment as to the length of time the train was stopped was admissible. The best any witness could do would be to give his best judgment as to the length of time, provided he had had no opportunity to consult a watch or clock.

There was no error in the court's excluding the evidence of the conductor, as to what the passengers told him, concerning whether or not intestate had left the train. It was competent for him to testify that he made inquiry of a certain passenger, and the result of his inquiry, but not to give in detail the conversations between him and other passengers as to the whereabouts of intestate. A part of the excluded testimony was competent, and a part of it was incompetent, and appellant should have separated it.

A party will not be allowed to inject into a trial incompetent evidence, by connecting it, in the same question or answer, with competent evidence. He should separate the two. He cannot shift that duty upon the court, nor put the court in error for failure to assume the duty.

The trial court did not err in excluding the stenographic report of the evidence of the witnesses Dilburn and others, on a former trial. A sufficient predicate had not been laid for its admission, and some of this evidence offered was clearly not admissible, and for its admission no sufficient predicate could have been laid. The report was offered as a whole.

There was no error in the giving of any of the charges requested by the plaintiff. They state the law correctly, as announced by this...