North Birmingham St. Ry. Co. v. Liddicoat

• Decision Date: 25 April 1893
• Citation: 13 So. 18,99 Ala. 545
• Parties: NORT BIRMINGHAM ST. RY. CO. v. LIDDICOAT.
• Court: Alabama Supreme Court

13 So. 18

99 Ala. 545

NORT BIRMINGHAM ST. RY. CO. v. LIDDICOAT.

Supreme Court of Alabama

April 25, 1893

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

This was an action brought by the appellee, William Liddicoat, by his next friend, to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant, the North Birmingham Street Railway Company. There was judgment for the plaintiff, and defendant appeals. Reversed and remanded.

The defendant interposed a demurrer to the complaint upon the following grounds: (1) Because it does not allege that the defendant's train was at a station or regular stopping place where passengers were received and discharged, when the plaintiff attempted to get aboard of the train. (2) Because it does not allege that the defendant or its servants knew or could have known that William Liddicoat was attempting to get aboard the train when he received the injuries complained of. (3) Because the complaint shows that plaintiff was guilty of contributory negligence that was the proximate cause of the injuries complained of by him, and does not allege that the defendant was guilty of wanton negligence or intentional negligence. The court overruled each of these grounds of demurrer.

Garrett & Underwood, for appellant.

Chas P. Jones and W. R. Houghton, for appellee.

STONE C.J.

Appellee a minor between 11 and 12 years of age, sued appellant, a street-railway company operating cars with dummy engines, to recover damages for alleged injuries sustained by plaintiff while attempting to board one of appellant's trains. The train he attempted to board was going from the city of Birmingham to North Birmingham, and was approaching a point where the Birmingham Mineral Railroad Company's tracks cross appellant's tracks, when it came to a stop just before reaching the crossing, and then proceeded on its way. Appellant has passenger stations at short intervals along its road, one of which is located about 200 feet north of the intersection of the two roads, but it has no station at the point where appellee attempted to enter its car. It was however, a common, if not daily, occurrence for persons to take advantage of the momentary stoppage of the train as it approached the crossing, to board or alight from its cars, and it does not appear that this practice was ever prohibited, or objected to, by appellant, or its servants in charge of its trains. The habitual stopping of the train at this point was in consequence of the requirements of the statute, (Code, § 1145,) and not for receiving and discharging passengers, though that had become a frequent, if not daily, occurrence, as stated above. On the 23d of March, 1891, appellee was standing on the side of appellant's track, either upon or near the roadway of the intersecting road, when appellant's train, consisting of an engine and two cars, approached the crossing, going north. One of the cars was an ordinary passenger coach and the other an open car having running boards extending along each side, which furnished a step to passengers getting on or off the car. Appellee attempted to board one of the cars, but fell, and one of the trucks passed over and crushed his leg, necessitating amputation. For that injury this suit was brought. Whether appellee, when he attempted to board the train, was standing on the track of the intersecting road, and attempted to get on the car while the train was in motion, or whether he was south of the crossing and the train at rest when he made the attempt, are questions as to which the testimony is conflicting. There is also direct conflict in the testimony as to the cause of appellee's fall. His statement is that he undertook to board the open car while the train was at rest, south of the crossing, the open car being next to the engine; that he stepped on the running board, and seized with his hand the arm or support attached to the car to assist passengers in getting in and out of the car; that one end of the arm or support broke loose from its fastenings, and precipitated him upon the track. The engineer, on the other hand, testified that he was looking at appellee when the accident occurred; that he saw him, as the train was passing, standing on the roadway of the Birmingham Mineral Railroad Company at its intersection with appellant's road, and that, the box passenger coach being next the engine, appellee jumped on the rear steps of that car and seized hold of the railings; that he lost his hold and fell on the track, and the front truck of the rear car passed over his leg; that the railing of which he took hold did not break loose, and was not out of repair. There is other testimony seemingly corroborative of each of these versions of the accident. The averments of the complaint, so far as material to be noticed, are that "on the day and year aforesaid, at a point in North Birmingham, on defendant's line of road, a short distance south of where the defendant's road crosses the Birmingham Mineral Railroad, the plaintiff boarded, or attempted to board, or attempted to and was in the act of getting on, one of the defendant's passenger cars, as a passenger, as he had the right to do; that the car the plaintiff was attempting to get on was an open car with a running board on each side for passengers to get on and into the car; that on each of the seats of said car was a handle or arm made and used for the purpose of enabling passengers to catch hold of the same, to enable them to pull themselves into the car; that plaintiff caught hold of one of these handles or arms, and was pulling himself into the car, when the handle or arm turned or broke, whereby plaintiff was thrown to the ground and under the car, and his leg was run over," etc. There was a demurrer to the complaint, which was overruled. The defendant then pleaded the general issue and contributory negligence on plaintiff's part. The errors assigned are the rulings of the court on the demurrer to the complaint, on the charges given and refused, and on the motion for a new trial.

It may be declared as a general rule that the relations of carrier and passenger are founded in contract, either expressed or implied, made upon a valuable, but not necessarily a pecuniary, consideration; "and when such relations bring one of the parties into contact with a material agency which the contract requires the other party to supply, the law exacts of him who supplies that agency the duty of exercising care in its selection, maintenance in repair, and operation." 2 Amer. & Eng. Enc. Law. p. 739. The relation begins "when the contract of carriage having been made, or the passenger having been accepted as such by the carrier, he has come upon the carrier's premises, or has entered any means of conveyance provided by the carrier." Id. p. 244. It is the duty of the carrier to provide safe and convenient stations, and means of ingress to and egress from its cars; and if a person has the bona fide intention of taking passage by a train, and goes to a station at a reasonable time, he is entitled to protection in these respects, as a passenger, from the moment he enters the carrier's premises. The carrier may, by proper notice, prohibit the receiving or discharging of passengers at other places than the stations provided by it,...