Louisville & N.R. Co. v. Glasgow

• Decision Date: 21 November 1912
• Citation: 179 Ala. 251,60 So. 103
• Parties: LOUISVILLE & N. R. CO. v. GLASGOW.
• Court: Alabama Supreme Court

60 So. 103

179 Ala. 251

LOUISVILLE & N. R. CO. v. GLASGOW.

Supreme Court of Alabama

November 21, 1912

Appeal from Circuit Court, Shelby County; John Pelham, Judge.

Action by James S. Glasgow against the Louisville & Nashville Railroad Company for injuries received while on the premises of defendant for the purpose of taking passage on its train. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 4 is as follows: "Plaintiff claims of defendant corporation the sum of $10,000 as damages, for that theretofore, to wit, on the 17th day of October, 1908, the defendant company by its servants or agents was engaged in the operation of a railroad for the carriage of passengers for hire in Shelby county, Ala., and by its said agents or employés then and there so negligently conducted said business that by reason of such negligence, and as a proximate consequence thereof, the plaintiff, who was then and there rightfully on defendant's premises, or near thereto, at or near a station on defendant's road and there for the purpose of taking passage on defendant's north-bound passenger train, which was then due or about due at said station, received the following personal injuries [Here follows catalogue of injuries]--to the great damage of plaintiff as aforesaid." Count 5 is a mere elaboration of count 4.

The demurrers raise the proposition that the allegation that plaintiff was then and there rightfully on the premises was a mere conclusion of the pleader, and that no facts are stated showing how or in what manner he had a right to be there, and in that the counts were inconsistent and repugnant. The substance of the pleas is sufficiently set out in the opinion.

The following charges were given for the plaintiff. (A) "The court charges the jury that, if they are reasonably satisfied from all the evidence in the case that the accident complained of happened by an iron rake or some other instrument or hard substance so negligently carried on defendant's train that it came in contact with the mail sack hanging on the crane near defendant's roadbed and dragged the same off, and either struck or caused the mail bag to strike plaintiff and inflict the injuries complained of, then the jury would be authorized in finding that the defendant was guilty of negligence." (B) "The court charges the jury that it would be negligence on the part of the defendant to so negligently carry on its train an iron rake, or other hard substance, as that it would come in contact with the mail sack hanging on the crane near defendant's roadbed, and drag the said mail sack off of said crane, and be dragged from said train by so coming in contact with said mail sack, and either striking or causing said mail sack to strike plaintiff, and inflict the injuries complained of." (C) "The law requires the highest degree of care, skill, and diligence, by those engaged in the carriage of passengers by railroads, known to careful diligent, and skillful persons engaged in such business." (D) "The law exacts of common carriers of passengers the highest degree of care and prudence for the safety of passengers." (E) "I charge you that the law imposes upon common carriers of passengers the duty of exercising the highest degree of skill, care, and diligence in the transportation of passengers, and holds them responsible for the consequences of the slightest negligence approximately resulting in injury to persons sustaining the relation of passengers."

The following charges were refused to the defendant: (25) "The court charges the jury that if you believe from the evidence that before said train reached said flag station and when it was about 200 or 300 yards away, the plaintiff knew or was informed that said train was not going to stop at said station, and knew that it was rapidly approaching said station, and said level place beside said track was only for passengers to get on and off defendant's passenger trains that stopped at said flag station to take on or let off passengers, and was not made and leveled to be used as a depot or waiting place, then plaintiff was not rightfully upon defendant's said graveled platform with such knowledge, and within 10 or 12 feet of defendant's said track, then plaintiff was a trespasser on defendant's right of way."

Whitson & Harrison, of Talladega, for appellant.

Allen &amp Bell, of Birmingham, and McMillan & Haynes, of Columbiana, for appellee.

ANDERSON J.

There can be no doubt of the soundness of the proposition that, when a plaintiff sues for injuries sustained upon the track or premises of the defendant and relies upon simple negligence, he must by proper averment set up the relationship between him and the defendant, and show that he is not a trespasser and is entitled to recover for the simple negligence as charged. Counts 4 and 5, however, aver such a relationship as to warrant the plaintiff in recovering for the simple negligence there charged. They charge that the plaintiff was rightfully on the defendant's premises at or near a station where he had gone for the purpose of taking passage upon defendant's train, which was then or about due. If the complaint only stated that he was rightfully there, this might be a mere conclusion; but it further shows why and wherein he was rightfully there by the further averment that he had gone there to take passage upon the defendant's north-bound train, then due or about due. Nor did the counts have to set up the instrumentality of the injury or the quo modo. There was no error in overruling the demurrer to counts 4 and 5.

A person standing at or near a station awaiting his train is not guilty of contributory negligence by standing near the track, unless he gets so close thereto as to be struck by an ordinary train. In other words, if he stands far enough off to escape a train of ordinary width, but happens to be struck by something that projects therefrom, or is thrown or falls therefrom, he cannot be deemed guilty of contributory negligence. Denison & S. R. R. v. Craig, 35 Tex.Civ.App. 548, 80 S.W. 865. Pleas 6, 7, 9, 11, 12, and 14 if not otherwise bad, fail to show a causal connection between the negligence charged and the cause of the injury. They charge the plaintiff with standing dangerously near the track, but do not show that he was struck by the passing train, or that the position as taken by the plaintiff was dangerous as against a natural or ordinary passing train. Non constat the plaintiff may have been...