Southern Ry. Co. v. Hayes

• Decision Date: 13 May 1915
• Docket Number: 829
• Citation: 194 Ala. 194,69 So. 641
• Parties: SOUTHERN RY. CO. v. HAYES.
• Court: Alabama Supreme Court

69 So. 641

194 Ala. 194

SOUTHERN RY. CO. v. HAYES.

No. 829

Supreme Court of Alabama

May 13, 1915

Rehearing Denied June 30, 1915

Appeal from Circuit Court, Morgan County; D.W. Speake, Judge.

Action by Mrs. E.M. Hayes against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911 Affirmed.

The pleadings and the facts sufficiently appear from the opinion. The following charges constitute the assignments of error as noted and numbered respectively in the opinion:

(26) "I charge you that necessity alone could warrant plaintiff at the time in question in assuming a position upon the platform of defendant's train, provided you find from the evidence that it was rapidly moving at the time, and that said platform was an obviously unsafe place to ride."

(27) "If you are reasonably satisfied from the evidence that plaintiff voluntarily, and without necessity therefor assumed a position on the platform of defendant's car and that such position was obviously dangerous to a reasonably prudent person, and that she failed to take such precautionary measures for her safety as a reasonably prudent person like situated would have done, and that she thereby proximately contributed to her injuries, then you cannot find for plaintiff."

(28) "If you find from the evidence that plaintiff was injured by reason of the fact that she was injured on the platform of defendant's car, and that this was an obviously perilous place to ride instead of in the car, then I charge you that you cannot recover in this case, unless you are reasonably satisfied by the evidence that she had a reasonable and legal excuse for her presence on the platform at the time of her injury, and that while on the platform she took reasonable precautions to protect herself from injury."

(29) "I charge you that it was negligence, except under special circumstances, for a passenger to stand upon the platform of a car of a rapidly moving commercial railroad train."

(31) "If you are reasonably satisfied from the evidence that plaintiff at the time in question found the seats in the day coach occupied by other passengers, and that she could not obtain accommodation on said day coach, then I charge you that she had a right under the law to assume and occupy a seat on the dining car on said train, provided you find that said dining car was a safe place to be occupied by her, and a safer place than on the platform."

(32) "I charge you that the burden of proof is upon plaintiff in this case to reasonably satisfy you by the evidence that she received her injuries as alleged in her complaint."

(33) "If you are reasonably satisfied from the evidence that plaintiff at the time in question," etc., as 31 except it uses "Pullman coach," instead of "dining car."

(36) "I charge you that if you find from the evidence that defendant's train was overcrowded, and that plaintiff as a passenger could not obtain the accommodations to which she was entitled, she had a right to refuse to ride upon said train; and I charge you that if you find she elected to ride on the train, and that she voluntarily assumed an obviously extrahazardous position upon the train, that then it was her duty so far as she reasonably could to protect herself from being thrown onto the floor of the train by any lurch or jerk of the same, no more violent than the lurching or jerking of trains known to be a necessary incident to their rapid movement when operated with due care, provided you find from the evidence said train was moving rapidly and operated with due care."

(39) "Plaintiff was under no duty to defendant to pay an additional fare and ride in the Pullman or sleeping car; and if you believe from the evidence that on reaching the day coach she found the said coach so crowded as that she could not enter by reasonable effort, and defendant's conductor or auditor failed to provide her a seat upon her request, then in law her being on the platform would be of necessity or by compulsion."

(40) "If you believe from the evidence that plaintiff was a passenger on defendant's train, as alleged in the complaint, and by reason of the crowded condition of the train there was no unoccupied seat on defendant's cars, and she was of necessity, real or reasonably apparent, standing on the platform of one of defendant's cars, and while on said platform she prudently and reasonably guarded herself from being thrown or jerked down, and if you further believe that plaintiff's situation was known to defendant's employés, and they then ran said train at such a careless or negligent rate of speed as to cause plaintiff to fall or be injured, your verdict should be for plaintiff, under count 2 of the complaint."

The last two numbers were charges given at the instance of plaintiff; the others were charges refused to defendant.

Wert & Lynne, of Decatur, for appellant.

W.T. Lowe, of New Decatur, and Callahan & Harris, of Decatur, for appellee.

GARDNER J.

Suit by appellee against the appellant for the recovery of damages alleged to have been suffered while a passenger on appellant's railway, en route from Washington, D.C., to Decatur, Ala., appellee's home. The case went to the jury on counts 1 and 2, the plea of the general issue, and a number of special pleas of contributory negligence.

Count 1 seeks the recovery for negligence in defendant's failing to provide plaintiff with a seat, as a result of which she was compelled to stand upon the platform, and by a lurch of the train was thrown to the floor, resulting in injury.

Count 2, after alleging the relationship, etc., and that there was no unoccupied seat on the inside of the car, as she was advised by the conductor or auditor of said train, and that therefore she, with other passengers, was on the platform between two of its cars, which condition was known to its employés, alleges that, notwithstanding this situation, the agents or servants in charge of said train negligently ran the train at such great speed as to cause it to suddenly jerk or lurch, throwing plaintiff on the floor of the platform; and the count concludes that:

"Her said injuries were the proximate consequence of the negligence of the defendant in operating said train in such a manner as to cause it to suddenly jerk or lurch," etc.

We think the count sufficient as against any demurrer here interposed. So. Ry. Co. v. Crawford, 164 Ala. 178, 51 So. 340. The argument seems to be that, because the complaint discloses that the plaintiff was on the platform of the car, therefore it is subject to demurrer, as showing upon its face that she was guilty of contributory negligence such as to bar recovery. It is recognized, however, that there are many circumstances under which it will not be negligence in the passenger to remain upon the platform of the car. Clanton v. So. Ry., 165 Ala. 485, 51 So. 616, 27 L.R.A. (N.S.) 253; Cen. Ga. Ry. v. Brown, 165 Ala. 493, 51 So. 565; A.G.S. Ry. v. Gilbert, 6 Ala.App. 372, 60 So. 542; 2 Shearman & Redfield on Negligence,§ 523; Graham v. McNeill, 20 Wash. 466, 55 P. 631, 43 L.R.A. 300, 72 Am.St.Rep. 126-9.

Contributory negligence is, of course, an affirmative defense, which must, as a general rule, be specially pleaded. The complaint does not show on its face such contributory negligence as to bar recovery, and the demurrer was properly overruled.

We are of the opinion that no injury could have resulted to the defendant by the sustaining of the demurrer to plea 6, as the defendant had the full benefit of the substance of said plea in some of the pleas of contributory negligence upon which the case was tried, notably pleas 2, 3, and 4.

We are also of the opinion, however, that the plea was subject to demurrer. It is the well-understood rule that:

"To withstand an appropriate demurrer, a plea of contributory negligence must go beyond averring negligence as a conclusion, and must aver a state of facts to which the law attaches that conclusion." Osborne v. Ala. Steel & Wire Co., 135 Ala. 575, 33 So. 688.

The plea fails to aver that the plaintiff voluntarily assumed a position on the platform, and does not aver sufficient facts to which the law would attach negligence as a conclusion. Each count in the complaint shows a future to supply the plaintiff with a seat, and that the injuries resulted from a sudden lurch of the train, whereby she was caused to fall upon the platform.

For the alleged negligent conduct of the plaintiff to be of any avail to the defendant company such conduct should have been the proximate cause of the injury; and in a case of this character, if the cause of the injury would have been of the same result to the passenger, has he been within the car, his negligence in standing on the platform would not in law be considered the proximate cause of the injury. 3 Hutchinson, Carriers, § 1197; 5 Rul. Case Law, § 694; So. Ry. Co. v. Harrington, 166 Ala. 630, 52 So. 57, 139 Am.St.Rep. 59; 6 Cyc. 640. It does not appear from said plea, except by way of conclusion, that the mere fact that the plaintiff was standing on the platform, when she received her injuries by being thrown on the floor thereof, was the proximate cause of the injury any more than had she been standing within the car, as the plea does not deny that there were no seats therein unoccupied.

Counsel for appellant cite authorities to the effect that it is negligence per se on the part of the passenger to ride on the platform of a rapidly moving commercial train, unless he is able to show that there was a necessity therefor. Worthington v. Cen. Vt. R. Co., 64 Vt. 107, 23 A 590, 15 L R.A. 331; L. & N.R. Co. v. Morris (Ky.) 62 S.W. 1012; Rolette v. G.N.R. Co., 91 Minn. 16, 97 N.W. 431, 1 Ann.Cas. 313; C., C., C. &...