Southern Ry. Co. v. Morgan

• Citation: 54 So. 626,171 Ala. 294
• Parties: SOUTHERN RY. CO. v. MORGAN.
• Decision Date: 09 February 1911
• Court: Supreme Court of Alabama

54 So. 626

171 Ala. 294

SOUTHERN RY. CO. v. MORGAN.

Supreme Court of Alabama

February 9, 1911

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by the Southern Railway Company against William C. Morgan. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Lawrence E. Brown, for appellant.

Virgil Bouldin, for appellee.

SAYRE J.

Plaintiff sued for damages for personal injury, alleging in the most general way, after stating the relation of passenger and carrier between him and defendant, that defendant so negligently operated one of its cars, a part of the train upon which he was, that by reason of such negligence he received great personal injuries, setting them out according to their nature and extent. The case made by the evidence offered on behalf of plaintiff was as follows: Plaintiff, his daughter, Mrs. Lemley, and Mrs. Lemley's child, an infant in arms, had purchased tickets and had taken passage to Limrock. The witnesses with one accord say that the train stopped at Limrock. The evidence was in conflict as to the length of the stop, but there was enough making for plaintiff's view of the case to justify the jury in finding that the stop was so brief that these passengers had not a reasonable time within which to safely alight. Further plaintiff's case, construed most favorably to him, was that in the effort to alight he had reached the steps of the car just at the moment the train started again, and thence a sudden jerk of the train caused him to fall or be thrown to the ground. The jury must have found in accordance with the stated version of the facts, and thereupon the plaintiff was entitled to a verdict. But it is insisted that, conceding the jury were authorized to find that the stop was so short as not to afford a reasonable time for alighting from the train yet the great weight of the evidence went to show that plaintiff was guilty of a lack of due care on his part contributing to some extent and proximately to his injury and therefore that the trial court erred in overruling defendant's motion for a new trial.

We feel constrained to say that we concur in this view of the case. We will state our view of the facts. Plaintiff and his daughter were sitting near the front door of the car. When Limrock station was announced, they prepared to alight. Plaintiff had a suit case in his right hand. His daughter had her babe on her left arm. The daughter led the way. Plaintiff followed as closely after as he could. Mrs. Lemley testified "I was going down the steps when the train started, father right behind me. As he started down the steps, the train gave a quick jerk and jerked my hold loose. It was going so fast I fell off. And while I was falling--pa was right in behind me and he--we started down the same steps, and I fell off first, and it was going so fast it throwed him above me. We were even with the depot platform when the train started. I was on the steps coming down when the train started. It started, and jerked my hold loose, and pitched me out. * * * I seen my father on the ground. I did not see him as he fell. * * * When pa fell off the train was past the end of the depot--far end of the platform." And on cross-examination: "Pa left the train pretty quick after I did. I seen him when he hit the ground. I didn't have to turn around. I said, 'Lord have mercy! Pa is on that train,' and just then I saw him hit the ground." Plaintiff testified: "Just as we made our way to step off of the first step the train jerked and started, and broke my hold loose, and I went one way and she the other. * * * The train was going as fast as a man could walk when it jerked me off; jerked my hand loose from handle bar. The fast part was not the trouble. It was the jerk that done the work; jerked my hand loose and jerked hers loose. I cannot tell how much faster train was going when I fell off than when my daughter fell off. * * * Train pitched me head foremost. I had suit case in my right hand. My daughter fell out in front, and I fell out sideways on my right side. * * * I had left hand hold of the iron bar, and I had suit case in my right hand. My face was next to depot when I recollect I passed the depot." It is certain that, whether Mrs. Lemley was thrown by the starting of the train, or whether she voluntarily stepped off after the train had started forward, the flagman caught her, so that, as...