Melton v. Birmingham Ry., Light & Power Co.
Decision Date | 14 November 1907 |
Citation | 153 Ala. 95,45 So. 151 |
Parties | MELTON v. BIRMINGHAM RY., LIGHT & POWER CO. |
Court | Alabama Supreme Court |
Rehearing Denied Dec. 19, 1907.
Appeal from City Court of Birmingham; C. W. Ferguson, Judge.
Personal injury action by Susie R. Melton against the Birmingham Railway, Light & Power Company. From an order granting defendant a new trial on verdict and judgment for plaintiff plaintiff appeals. Reversed and rendered.
Denson & Denson, for appellant.
Tillman Grubb, Bradley & Morrow, for appellee.
This is an action by a passenger against a common carrier to recover damages for a personal injury alleged to have been sustained by the passenger through the negligence of the carrier's servants in and about the carriage of the passenger. The cause was tried on pleas of the general issue, contributory negligence, and assumption of risk. There were verdict and judgment for the plaintiff for $500, and from an order granting the defendant a new trial the plaintiff has taken this appeal.
We think there can be no doubt of the soundness of the proposition that the relation of passenger does not terminate when the passenger leaves the car, but continues until he has reasonable opportunity to leave the car and roadway of the company, after the car reaches the station or stopping place to which he is entitled to be carried. This is the generally accepted doctrine. Montgomery Street Railway Co. v Mason, 133 Ala. 508, 527, 32 So. 261; Sellers' Case 93 Ala. 9, 9 So. 375, 30 Am. St. Rep. 17; Van Ostran v. New York, etc., R. R. Co., 35 Hun, 590, 595; Hutchinson on Carriers (2d Ed.) § 615. Nor do we think that it can be the subject of serious doubt that if the plaintiff, while traveling on one of the defendant's cars on a dark night, signaled the conductor to put her off at a particular street crossing (a regular stopping place), and the conductor understood the signal, but failed to put her off at that crossing, and put her off at a place beyond such crossing, where the company's track was ballasted with slag and was very rough, and that the plaintiff, while attempting to cross the track to go to her home, which was on the side of the track opposite the point where she alighted from the car, fell, and by the fall suffered the injury complained of, this would constitute actionable negligence, entitling the plaintiff, under either count of the complaint, to a recovery, unless she was guilty of contributory negligence in making her way across the track, or unless she assumed the risk. See authorities cited supra; Houston & Tex. Cent. R. R. v. Smith (Tex. Civ. App.) 32 S.W. 710; Id. (Tex. Civ. App.) 33 S.W. 896.
The evidence without conflict shows that the car was stopped beyond the street signaled for, that it was a very rough place at which the stop was made, that the conductor aided the plaintiff in alighting from the car, and...
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