Roberts v. Kurn, 2 Div. 52

• Decision Date: 21 November 1935
• Docket Number: 2 Div. 52
• Citation: 165 So. 77,231 Ala. 384
• Parties: ROBERTS v. KURN et al.
• Court: Alabama Supreme Court

165 So. 77

231 Ala. 384

ROBERTS v. KURN et al.

2 Div. 52

Supreme Court of Alabama

November 21, 1935

Rehearing Denied Jan. 16, 1936

Appeal from Circuit Court, Marengo County; Benj. F. Elmore, Judge.

Action for damages for personal injuries by William T. Roberts against J.M. Kurn and John G. Londsdale, as trustees of the St. Louis & San Francisco Railway Company, in bankruptcy. From a judgment for defendants, plaintiff appeals.

Affirmed.

Goerge Pegram, of Linden, for appellant.

W.F Herbert, of Demopolis, and Watson & Pasco & Brown, of Pensacola, Fla., for appellees.

FOSTER Justice.

This is an action for personal injuries claimed to have been caused plaintiff by defendant's negligent failure to provide for him as a passenger while alighting at his destination "a proper and sufficient place, light, means and facilities to enable him safely to alight."

The evidence most favorable to plaintiff was that he was such a passenger, and though 72 years old, he was hale and hearty and showed no evidence of infirmity, and was not infirm. His only baggage was a satchel, not shown to have been burdensome. He did not seek aid, and showed no sign of needing any, and does not claim in the complaint for a failure to provide aid. The particular act of negligence attempted to be shown was the failure to provide a footstool or box on which to step on alighting from the steps of the car. There was no such box provided, nor a substitute for one. The evidence was that the bottom step was at most 17 1/2 inches from the platform or ground. This was a smooth hard surface of chert plastered down evenly on a grade with the rails. Plaintiff did not fall, and it was after daylight, and though he looked for the box before he stepped, he saw it was not there, but claims that on account of the height of the step a hernia condition, which he had, was caused to be acute resulting in an operation. He had hernia from early childhood, with more or less trouble. The doctor says that his acute condition could have been brought on by such a step. Plaintiff testified that it was so brought on. The court gave for defendant his requested affirmative charge.

The duty to aid a passenger to alight has been well considered in this state. Atlantic Coast Line R. Co. v. Farmer, 201 Ala. 603, 79 So. 35; Central of Georgia Ry. Co. v Carlisle, 2 Ala.App. 514, 56 So. 737.

Although plaintiff testified that no aid was rendered him by the trainmen, as to which the evidence was in dispute, no such claim is made in the complaint, and none of the evidence showed that plaintiff apparently needed any aid, or that defendant owed plaintiff the duty to render it; so the right to the affirmative charge for defendant is dependent solely upon whether from that evidence the jury could find a duty was owing plaintiff to provide a box or footstool at that time and place for alighting. Such need did not apparently exist in respect to plaintiff, more than to any other ordinary man in good health and strength. Such was plaintiff's condition as he testified. There was nothing to impose upon defendant such a duty, unless a step of 17 1/2 inches to smooth, hard, level ground, in the light of early day, served to do so.

The question has been considered by the courts in various states as well as in Alabama. We think that the same idea prevails, and that its substance is that the circumstances must be such as to impress a reasonable person that the passenger in question apparently needed the aid of a box or footstool to alight safely. This need may arise from the physical condition of the passenger or his incumbrances, or the darkness at the alighting place, or its unevenness or distance from the lowest step. But there must be some circumstance from which a reasonable person may infer that the particular passenger then and there needed such an alighting appliance. The cases so holding are as follows: San Antonio, etc., Ry. Co. v. Wiuvar (Tex.Civ.App.) 257 S.W. 667; Texas Midland R. Co. v. Frey, 25 Tex.Civ.App. 386, 61 S.W. 442; Young v. Missouri Pac. Ry. Co., 93 Mo.App. 267; 10 Corpus Juris, 934; Atlantic Coast Line R. Co. v. Farmer, 201 Ala. 603, 79 So. 35; Southern Ry. Co. v. Hayne, 209 Ala. 186, 95 So. 879.

We do not think that any reasonable person could find that there was any apparent danger in not providing a box for alighting from a train under the circumstances we have stated, as described in plaintiff's testimony, with none other more favorable to him. There was therefore no jury question.

In respect to assignments 1 and 2, it seems that the witness, on page seven of the transcript, virtually answered the question. Moreover, the complaint does not claim for a want of assistance, nor does the evidence show that defendant had notice of any such need by plaintiff. It could properly be shown as a part of the res gestae, but the answer most favorable to plaintiff would not have affected the right of defendant to the affirmative charge.

Assignments numbered 3 and 6. While it might probably be shown the extent of the distance between the "ground and the last step of the carriages, springwagons and buggies in...